Lenton and Lenton

[2010] FamCA 1005

FAMILY COURT OF AUSTRALIA

LENTON & LENTON [2010] FamCA 1005

FAMILY LAW – CHILDREN – With whom a child spends time - Procedural orders – Transfer of from the Federal Magistrates Court to the Family Court of Australia due to serious allegations by the mother and the father regarding the other parent’s conduct

APPLICANT: Mr Lenton

RESPONDENT: Ms Lenton

FILE NUMBER: MLC 8792 of 2010

DATE DELIVERED: 11 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Skerlj

SOLICITOR FOR THE RESPONDENT: Wisewould Mahony Lawyers

Orders

IT IS ORDERED THAT:

1. The interim hearing of the competing applications for parenting orders concerning the children E born … July 1999, A born … December 2001, J born … November 2003 and T born … March 2006 be adjourned to 24 November 2010 at 10.00 am in the Magellan Duty List NOTING THAT this is not a matter categorised as a Magellan matter.

2. The matter be listed for telephone mention before me on Monday 15 November 2010 at 9.00 am for directions for the interim hearing and a consideration of the appropriateness of a s 62G(2) Report or other reportable assessment.

3. By not later than 12.00 noon on Monday 25 October 2010 the husband file and serve any material upon which he seeks to rely in response to the wife’s affidavit sworn 7 October 2010.

4. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children E born … July 1999, A born … December 2001, J born … November 2003 and T born … March 2006 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be familiar with the matter prior to 15 November 2010.

5. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. Until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Sikiotis or Registrar Riddiford for the return of subpoenae.

8. To the extent that leave is necessary, there be leave to either party and to the independent children’s lawyer to serve subpoenae to give evidence returnable on 24 November 2010 and in the event that a witness will not swear an affidavit or is required for cross-examination.

9. The parties do all acts and things necessary to enable Dr K to prepare a psycho-social assessment of each of them NOTING THAT arrangements have been made for Dr K to see the parties on 5 November 2010 and it is anticipated that his report will be published approximately one week later.

10. By not later than 4.00 pm on Thursday 28 October 2010 the solicitors for the wife provide Dr K with clean copies of all relevant affidavit material in this proceeding, including:-

    a)     the husband’s affidavit sworn 17 September 2010;

    b)     the wife’s affidavit sworn 7 October 2010; and

    c)     any further material filed pursuant to this Order.

11. By not later than 12.00 noon on 25 October 2010 each party deposit with his or her respective solicitor an amount equivalent to one half of the estimated fees for Dr K’s assessment and such monies be paid out to Dr K on publication of the report and production of an invoice for same.

12. Promptly upon publication of Dr K’s report, the independent children’s lawyer send a copy of the report by electronic means to my Associate.

13. For the purpose of the interim hearing it is not necessary for the report of Dr K to be proved by affidavit providing that Dr K is available for cross-examination on 24 November 2010.

14. The reasons for judgment this day be transcribed, and when settled placed on the Court file and copies be and made available to the parties and to the independent children’s lawyer and, through him/her, to Dr K.

15. The independent children’s lawyer provide a copy of the reasons for decision to Dr K prior to his appointments with the parties.

16. The independent children’s lawyer provide a copy of the reasons for decision to the proper officer or Principal of the M School.

    AND IT IS NOTED that earlier today Federal Magistrate Reithmuller made interim parenting orders, which remain in full force and effect, which provide for the father to spend supervised time with the children at a contact centre or, subject to the agreement of the school principal, at school and prohibited the children having any contact with Mr G Lenton.

IT IS NOTED that publication of this judgment under the pseudonym Lenton & Lenton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8792 of 2010

MR LENTON

Applicant

and

MS LENTON

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me late in the day by way of transfer from Riethmuller FM.

2. The proceedings concern four children; E born in July 1999, A born in December 2001, J born in November 2003 and T born in March 2006.

3. The husband is 44 years old.  He is a teacher.  He earns approximately $60,000 per annum and resides with his father in the south eastern suburbs.

4. The mother is 41 years of age.  She is a personal services provider working from the family home, which is a property in the eastern suburbs.  She is in receipt of some income from personal exertion and receives the family benefit.  The husband has been assessed to pay child support.

5. I have heard submissions from counsel for each of the parties.  Neither appeared to grasp why the matter warranted a transfer from the Federal Magistrate Court to this Court.  However, having been taken through a history of the matter and having taken the opportunity to read everything on the court file, it appears that the wife makes allegations against the husband of three categories of inappropriate behaviour directed to herself and/or the children. The husband largely denies the behaviour and alleges that the mother is unwilling or unable to facilitate a relationship between the four children and himself.  Counsel for the parties thought that the matter could be resolved and/or the court would be assisted by a s 11F child and parent issues assessment.  An 11F assessment is not a family report.  Nor is it so much a forensic examination of the matter or the relationship between the children and their parents, as an early identification of issues and possible future directions. In my view, it would be a wholly inadequate tool to apply to this case.  The allegations by the wife against the husband are serious and, if made out, would constitute seriously questionable and inappropriate conduct by him which, on first blush, appears to be overly possessive, highly intimidatory, lacking in boundaries and disregarding of the physical needs of the children and the emotional needs of the wife and the children.  The father’s allegation against the mother, that she will not permit E, A, J and T, to have a meaningful relationship with him is also one of the most serious allegations that can be made by one parent against another.  I am satisfied that this matter should remain in this court.

6. The parents married in 1992, they separated in July 2008 under the one roof when the husband moved into a garage on the property at the former matrimonial home which he converted into a self-contained apartment.  On the mother’s account the father was overbearing, reckless to the point of being intimidating and put the safety or wellbeing of the children at risk.  She annexes to her affidavit a series of photos of J on the roof of the former matrimonial home undergoing construction.  J looks about two, maybe three, years old.  There is a photograph of the father holding one of the girls E, A or T and another of a baby, maybe J, in an awning.  Counsel for the mother says that these were instances of dangerous conduct by the father embarked upon over the opposition of the mother.  The father denies any recklessness or malice on his part and says that the photos were taken by the maternal grandmother and no-body asked him to desist.  I have looked at the photos annexed to the wife’s affidavit.  They are clearly meant to disturb.  They are similar to a competent crocodile handler taking a baby into a crocodile pit.  The photos hit the mark in that they are, indeed, disturbing.  I am critical of any adult who would expose a child to even the slightest risk of being harmed for the sake of a photograph.  That said, the photographs appear to be posed.  The subject child and father are, most times, smiling at the camera which is eloquent of there being cooperation between the father and the photographer.  The mother also says that that the father undertakes risky and inappropriate tasks with J and that J is hurt as a result, and, significantly, she is fearful that he will be hurt in the future.  It is likely that an issue in the case will be whether the father can prioritise the safety and security of J and the other children over his predilection for thrill seeking.

7. Arising out of the parties’ initial separation, there were proceedings under domestic violence legislation in the local Magistrates Court.  An intervention order was obtained which is annexed to the wife’s affidavit and mutual undertakings were given.  They are found as exhibits, “JLL4 and 5.”

8. The mutual undertakings dated 4 August 2008 provide, inter alia, “For the defendant to remove all audio and visual devices from the dwelling house,” which was the former matrimonial home.

9. It is common ground, it appears, that there were listening devices or surveillance devices for which the husband was responsible for placing in the former matrimonial home without the consent or knowledge or the wife.  The father does not explain the devices in his evidence.  He has not had an opportunity to respond to the wife’s evidence.  Notwithstanding, he was the applicant and it is reasonable that he deal with, and explain, this curious aspect of the history in his initial evidence.  I do not regard it as normal that one party spy on another party.  It strikes me as possessive, proprietorial behaviour which indicates a lack of boundaries and respect, including self respect.  Moreover, it is capable of being highly intimidating of the person to whom the surveillance is directed.

10. The husband alleges that from approximately July or August 2008 the wife has been overly controlling of his time with the children, has minimised his time with the children, will not permit the children to have a reasonable or meaningful relationship with him.

11. He also alleges that the mother has been violent to the children.  I observe, however, that in spite of the father being the applicant in the proceedings, his one and only affidavit lacks any real specifics.  In the one specific incident involving scratches to the parties’ oldest daughter, the mother denies that it occurred.

12. I note that the father’s complaints against the mother are directed to her physical and emotional treatment of the children and that the complaints are of long standing.  I wonder, therefore, why the father did not issue proceedings sooner. 

13. The mother alleges that the husband has been physically and emotionally abusive of her during the marriage.  I observe that her affidavit does contain particulars but has been filed and served in these proceedings, which were abridged, without providing the husband with any real opportunity to respond.  I repeat, that is because the matter was accorded an urgent hearing.

14. The wife deposes to the husband acting in a manner which disregards usual boundaries in relation to talking to the oldest child, E, about adult matters and confiding in the child inappropriately.

15. She deposes that in September 2010 a tradesman attended to change the locks and made comments to her which were alarming in terms of the part of the property occupied by the husband containing “traps.”

16. I did not require the husband to respond through his counsel to the allegations in relation to tapping and surveillance because it appears they would constitute offences under State and Commonwealth criminal law and the husband, obviously, has a right to protect himself from self-incrimination.

17. Nonetheless, counsel for the husband said that there were no recent devices and that the mother’s complaints dated back to 2008.  I suppose it is implicit, therefore, that to the extent that devices or contraptions or traps might now exist, he says that he was not responsible for them and, perhaps, says that the mother was.

18. Having regard to the allegations and cross allegations of the parties, I am satisfied that the matter should remain in this court.  It may be appropriate to return to the trial court at a later time.  But, for the time being, it can remain here.  Each party seeks the appointment of an independent children’s lawyer which, I am satisfied, is sensible and warranted.

19. The matter was mentioned to me late this afternoon.  The parties, through their counsel, had been through a hearing with Riethmuller FM at which the father’s time with the children was restricted to supervised time at a contact centre or at the children’s school and his counsel said that there should be some reportable assessment.  I agree that there should be reportable assessment, however, the allegations of one against the other indicate that there may be some maternal anxiety on the part of the mother, which is either justified or not justified and the allegations about bugging devices or surveillance in relation to the husband, are of considerable concern to me whether they occurred in 2008 or in 2010.  But more so if they occurred both in 2008 and thereafter.

20. I have, in discussion with the counsel for the parties, sufficiently explained to them that prior to the Family Court making any family assessment process available to the parties, I would require that each party undergo a psychological assessment by a clinician who can point to or identify any personality weaknesses or traits or psychological conditions which may impact on the judgment of the parties, or either of them, or their capacity as parents.

21. Ultimately, the parties made inquiries and have made appointments for the parties to see Dr K on 5 November 2010.

22. The matter will come before me by way of telephone mention on 15 November and, then, by way of interim hearing on 24 November.  The 24 November is a Magellan duty list day.  It just seems at the moment not to be particularly heavily subscribed and I otherwise make time in my usual docket to deal with the matter.

23. The parties must be ready to proceed as soon as possible on 24 November.  I will make directions for that interim hearing on 15 November as well as consider the appropriateness of a section 62G report being prepared in anticipation of a final hearing.

24. On 24 November, the husband will be agitating for unsupervised time with

    
    

    the children, or so it would appear.  I note that it is a matter of personal disappointment to him that the matter cannot be accommodated by the Court in the first week of November 2010, which was his expectation when the matter was first mentioned before me.  In this context, counsel for the father asked me whether the father can now, this afternoon, re-litigate the issue of interim time. I have said that he cannot do so.  There is no change of circumstances between now and when the matter was decided by Riethmuller FM earlier in the day.  A change whereby the adjourned date is a further three weeks away is not, in my view, a change of circumstance which warrants a re-hearing.  

25. In relation to the school, I will direct that the independent children’s lawyer provide the school principal, or proper officer of the school, at which the children attend, M School, with a copy of these reasons.

26. In summary, each party makes serious allegations against the other, which are of concern to me.  I want to hear from an expert as to whether there are any underlying psychological conditions or symptoms or evidence of psychiatric disturbance about which the Court should be appraised before it makes any further parenting orders, including any order for a family assessment pursuant to s62G of the Act by a family consultant who has the benefit of assessing and observing the whole of the family.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 October 2010.

Associate: 

Date:  25 October 2010