Mafton & Salmet

[2021] FedCFamC2F 452

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mafton & Salmet [2021] FedCFamC2F 452

File number(s):	MLC 1873 of 2018
Judgment of:	JUDGE BURCHARDT
Date of judgment:	24 November 2021
Catchwords:	FAMILY LAW – Parties back in court relatively soon after final orders made following four day trial – Rice v Asplund objection not made out – clear extant orders not working – matter allocated early trial date to resolve all extant disputes.
Legislation:	Family Law Act1975 (Cth)
Cases cited:	Rice & Asplund [1978] FamCA 84
Division:	Division 2 Family Law
Number of paragraphs:	12
Date of hearing:	24 November 2021
Place:	Dandenong
Counsel for the Applicant:	Ms McCreadie
Solicitor for the Applicant:	Higgins Legal
Counsel for the Respondent:	Ms Brenton
Solicitor for the Respondent:	JN Zigouras & Co

ORDERS

MLC 1873 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MAFTON

Applicant

AND:

MR SALMET

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	24 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to the Melbourne Registry for final hearing before Judge Dunkley on 1 March 2022 at 9.30 am for an estimated hearing time of 2 days. 

2.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

3.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, interim parenting orders are made by consent, save for orders (3)(a)(i) and (3)(b)(i), in terms of the attached Minutes of proposed orders placed on the Court file.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

ENGROSSED MINUTE:

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

(1)Orders 6, 7 and 8 of the Orders dated 12 February 2020 and orders 6, 7 and 8 of the Orders dated 30 April 2020 be suspended.

(2)Until further order, X spend time with the Father as follows:

(a)In week one from the conclusion of school Thursday until the commencement school Monday, or if a non-school day until 5.00pm Monday; and

(b)In week two from conclusion of school Wednesday until the commencement of school Friday, or if a non-school day until 5.00pm Friday; and at such other times as agreed between the parties in writing

(3)During the long summer school holiday period being from the conclusion of school on 17 December 2021 to the commencement of school on 1 February 2022 X shall spend time with the parties as follows:

(a)With the Father:

(i)From the conclusion of school on 17 December 2021 to 3.00pm on 24 December 2021;

(ii)From 3.00pm on 31 December 2021 to 3.00pm on 7 January 2022; and

(iii)From 3.00pm on 14 January 2022 to 3.00pm on 21 January 2022;

(b)With the Aunt:

(i)From 3.00pm on 24 December 2021 to 3.00pm on 31 December 2021;

(ii)From 3.00pm on 7 January 2022 to 3.00pm on 14 January 2022; and

(iii)From 3.00pm on 21 January 2022 to the commencement of school on the first day of the new school year.

(4)The time as set out in order 2(a) and (b) herein shall be suspended during the long summer school holiday period and shall recommence as follows:

(a)Order 2(a) herein shall recommence on 3 February 2022; and

(b)Order 2(b) herein shall recommence on 9 February 2022.

(5)When changeover does not occur at X’s school then the parties shall meet in the foyer of the Town G police station unless otherwise agreed in writing.

(6)All interim applications be dismissed.

(7)The matter be listed for final hearing for 2 days commencing 1 March 2022.

(8)That the parties make, file and serve by 4.00pm on 4 February 2022:

(a)One trial affidavit upon which they may rely; and

(b)Any witness affidavit upon which they seek to rely;

(9)The parties make, file and serve an Outline of Case document no later than 4.00 pm on 21 February 2022.

(10)Certify for Counsel.

AND IT IS NOTED:

A.For clarity the Father shall have the care of X in accordance with Order 2(b) herein in the last week of the school term leading into the commencement of the time as set out in order 3(a)(i) herein.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mafton & Salmet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Revised from Transcript

JUDGE BURCHARDT

1. I am going to give ex tempore reasons for judgment because my conclusion is clear. They may not traverse everything perhaps as fully as they should do.  On 30 April 2020, following a four-day trial and a 76-page judgment, given in February 2020, Judge Harland made orders for X to live with the aunt – as I will also refer to her – and spend time with her father. Such time then increasing in December of this year, and from 1 December, X was to live with her father and spend time with the aunt, depending upon how closely they lived together, from Friday to Monday in one week, and Thursday to Friday in another week. Those orders were tweaked, if I can put it in those terms, in April, I think.

2. But thereafter, the matter has been in and out of the Court on several occasions.  On one occasion, the father overheld and Judge Harland had to make orders about that.  On another occasion, he failed to provide details of the child’s school and that came back to Court.  But relevantly, for these purposes, on 17 March of this year, Judge Anthony Kelly made orders for – a contingent recovery order – yes.  That was in relation to the school issue.  I beg your pardon.  And also, having tweaked the orders that were then made, varied the time as to school holidays and, relevantly, ordered the preparation of a family report.  His Honour was, obviously, sufficiently persuaded that the Court would benefit from the receipt of such a report. 

3. The judgment of Judge Harland gave sole parental responsibility to the father and instituted the regime of time, to which I have referred. With the greatest of respect and speaking as somebody whose own judgments are criticised for being hard to follow from time to time, it is not entirely easy to see what it was that was decisive in the outcome of that decision. Be that as it may, we now have the family report of Dr DD. Before I come to that, I want to say something that operates, in a sense, in an overarching way. It is absolutely clear that the arrangements for this child are just not working. Each side would blame the other for that and that is a matter that would require determination. But it is absolutely clear that the parties are simply not able properly to conform with the orders as they were made.

4. The very fact that the matter has been back to Court twice since then speaks for itself.  And whatever criticisms may be made of Dr DD’s report, the fact is that it is before the Court.  All parties agree that the Rice & Asplund principle, if it may be so described, is about, in the ultimate, the best interests of the child.  The question is whether there is a material change of circumstances.  In my view, the utter failure of the parties to sensibly cooperate is, of itself, a change in circumstances.  It may be said that this was known to Harland J, and I think it was, but what her Honour was not, perhaps, then aware of was the extent of it.

5. And that brings us to Dr DD’s report.  It is surprising that, as it seems to me, that she did not feel able to read Judge Harland’s decision and it was, in my view, ill-advised of the advisors of the aunt and for the aunt to object to her doing so.  She ought to have been given that material and other materials.  However, the fact is, the Court has this report, which does indeed need to be tested, but it gives a very clear and precise and, on the face of it, reasoned set of recommendations as to why it is inappropriate that X lived primarily in the father’s care as the orders of Judge Harland would otherwise provide.

6. In the face of that report, and accepting that there is room for criticisms of her methodology, the fact is, that it is before the Court.  It is before the Court because the Court itself ordered it, and it is my view, would, if it were necessary to have such a finding, justify the view that there has been a material change in circumstances.  In my view, the Rice & Asplund [1978] FamCA 84 objection cannot be upheld. That then leaves what we do about the matter from here. This matter desperately needs to be heard and determined by judicial decision. I am going to give it a listing as early as is in any way practicable, and I think the Thursday and Friday before Judge Dunkley in February are still available.

7. Matter will be listed for trial on 1 March 2022, for two days, before Judge Dunkley.  It will be in Melbourne because we do not have any Courts available that week in Dandenong.  His Honour is a very experienced judicial officer and will no doubt be able to bring a penetrating mind to the very unfortunate and very difficult matters that confront these parties.  Whatever else one may say about it, it is a tragic set of circumstances and one’s heart goes out to everybody and particularly to X.  But for the reasons I have described, it is quite plain that it is in her best interest that this matter be heard and determined by a judicial officer as soon as practicable.  And I point out that the posited dates are just over 12 weeks away. 

8. That leaves only the question of the spend time regime and in the meantime, I am not prepared to make any alterations to the interim orders that would otherwise have be retained up until December.  That regime is to stay in place.  Then, thereafter, during the summer holidays, her Honour had ordered week about.  I see no reason why that should be displaced, at this stage, notwithstanding Dr DD’s report, because that has not been tested. 

9. What I would ask counsel to do is to put their heads together and bring to bear a minute that reflects these conclusions.  There are so many orders and interim orders tweaking it all, it may well be better to simply set all extant orders aside and put in the regime I have described;  namely, the eight-six arrangement as it presently is, plus this half school holidays, which will be sufficient to get the matter through to trial.  I will stand the matter down and request counsel to confer and produce such a minute.  If it is the subject of any disagreement, then you can mention the matter again when you are ready.  If it is an agreed minute, just send it through to my associate, and I will make the orders in chambers. 

10. It is very important to emphasise that the Court is no sort of adjudicator, as far as I am concerned, of what might perhaps be described as the relative merits of various forms of belief.  All persons in this country are entitled to have whatever form of religious belief they wish, obviously subject to any overarching illegality, but there is not even the remotest suggestion of that in this case.  And one has to respect that.  One of the big issues in the case, of course, is the asserted – and I think, not really denied – difference of religious views on the part of the aunt and her partner, on the one side, and the father and his family, on the other. 

11. The reality is that the pattern of week about is sustained by the orders proposed by the aunt, and given the difficulties the parties have with the operation of orders – and emphasising this is only an interlocutory view of the matter – it seems entirely desirable to me to keep this is straight and simple as possible. True it is that the net effect of that will be that the child will celebrate Christmas as it is – perhaps, if I can use such a phrase – ordinarily celebrated by a large percentage of the population, of whatever religious belief.  Christmas has moved – and the question as to whether or not this is a good thing is open for debate – but it has moved from being a purely religious observation to being a large social observation.  Indeed, there are those who have complained it has become far too much so.

12. I am not in a position to make any kind of informed assessment of the degree of the father’s concerns. They will be a matter for trial. I emphasise, in saying this, that I am not in any way denying the force and extent of his religious belief and his, no doubt, very sincere concerns as expressed through his counsel. But in all the circumstances, it seems to me that the real benefit in this is keeping the week about arrangement that is otherwise uncontroversial between the parties, and giving them a measure of certainty that is entirely desirable. I propose to leave the change over time as 24 rather than 26 of December, and there will be interim orders in terms of the minutes by consent, save orders (3)(a)(i) and (3)(b)(i).  So there will be interim orders in terms of the minutes. And the matter is adjourned to trial on 1 March 2022 for two days before Judge Dunkley in Melbourne.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Dated:       24 November 2021