MAHER & MILLS
[2015] FamCA 333
•8 May 2015
FAMILY COURT OF AUSTRALIA
| MAHER & MILLS | [2015] FamCA 333 |
| FAMILY LAW – CHILDREN – INTERIM ORDERS – application by the mother to suspend father’s time with the children for a period of 12 months – father and Independent Children’s Lawyer sought that the interim orders made in the Federal Circuit Court be extended to provide for return of children to school/day care and avoid further conflict between the parents at changeover – mother sought order for sole parental responsibility for the children and that the children live with her – mother sought airport watch list order be discharged to enable travel to Country J – mother’s application refused – mother left court during delivery of orders. FAMILY LAW – PROPERTY – INTERIM ORDERS – application by the father for interim orders in relation to the sale of the former family home – mother had relinquished former family home to the Bank – father’s application granted. FAMILY LAW – COSTS – application made by father for costs – costs reserved. |
| Family Law Act 1975 (Cth) |
| Goode and Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Maher |
| RESPONDENT: | Ms Mills |
| INDEPENDENT CHILDREN’S LAWYER: | Barbayannis Lawyers |
| FILE NUMBER: | MLC | 3562 | of | 2013 |
| ORDERS DELIVERED: | 14 & 15 April 2015 |
| DATE REASONS DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 14 & 15 April 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Belle Lane |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
| SOLICITOR APPEARING AS ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Pandelli |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbayannis Lawyers |
Orders Made 14 April 2015
IT IS ORDERED THAT
The father’s Application in a Case filed 2 April 2015 be adjourned to
15 April 2015 at 10.00 am.
Paragraphs 1, 2, 3, 4, and 5 of the mother’s Amended Application in a Case filed 2 April 2015 be dismissed.
Paragraphs 6, 7 and 8 of the mother’s Amended Application in a Case filed 2 April 2015 be adjourned to 7 July 2015.
Paragraph 3 of the orders made by Judge Small on 9 October 2014 be varied.
UNTIL FURTHER ORDER, the children spend time and communicate with the father as follows:
(a)Each alternate week from the conclusion of school and day-care at 3.30 pm (or 3.30 pm if the children are not at school and day-care) on Friday until the commencement of school or day-care (or 9.00 am if the children are not at school and day-care) on Monday, commencing on Friday 17 April 2015; and
(b)In the alternating week, from the conclusion of school and day-care at 3.30 pm (or 3.30 pm if the children are not at school and day-care) on Thursday until the commencement of school and day-care (or 9.00 am if the children are not at school and day-care) on Friday, commencing on 23 April 2015.
Each party bear their own costs.
THE COURT FURTHER ORDERS THAT:
All applications for final orders be adjourned for hearing before Justice Thornton on 9 July 2015 at 10.00 am as a five day matter and that the evidence in chief of all witnesses be given by affidavit.
The matter be listed for mention before Justice Thornton on 25 June 2015 at 10.00 am.
The mention hearing on 18 August 2015 be vacated.
The subpoena to the Department of Human Services issued by the Independent Children’s Lawyer on 31 March 2015 be released for inspection to the parties. The Independent Children’s Lawyer be at liberty to photocopy the material produced under such subpoena and to provide such material only to any professionals involved in the matter for the purposes of preparing any requisite report.
The subpoena hearing on 22 April 2015 be vacated.
Family Report
The parties and the children B born … 2008 and C born … 2010 attend upon and at the direction of Dr D for the purposes of the preparation of a further updated family report to be completed and released by 17 June 2015, with the father to pay for the costs of the preparation of such report.
Dr D be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.
Airport Watch List
UNTIL FURTHER ORDER, paragraph 3 of the orders made by Judge Small in the Federal Circuit Court on 11 June 2013 be extended to ensure that the father Mr Maher born … 1968 and the mother Ms Mills born … 1973 by himself/herself, his/her servants and/or agents, be and is hereby restrained from removing the children B born … 2008 (male) and C born … 2010 (female) (“the children”) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until 30 July 2015 or by further order of the Court.
As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
Applicant
By 4.00 pm on 2 June 2015 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
The applicant pay all setting down and trial fees by 4.00 pm on
2 June 2015.
Respondent
By 4.00 pm on 16 June 2015 the respondent file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
Applicant
By 4.00 pm on 23 June 2015, the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
Independent Children’s Lawyer
By 4.00 pm on 23 June 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.
Case Outline
The practitioners for the parties and the mother, Ms Mills, file and serve electronically to … by 4.00 pm on 30 June 2015 the following:
(a)a concise set of orders to be sought if different from those already filed;
(b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;
(c)a list of assets and liabilities;
(d)the witnesses whom you seek to cross-examine at trial;
(e)a list of objections (if any) to evidence upon which rulings are required; and
(f)a bullet-point summary of argument in relation to the issues in dispute.
Trial directions
No party file any further material other than as provided by these orders without leave of the Court.
All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.
All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:
(a)the Court may relist the case requiring the parties to justify why it should not be taken out of the list; and
(b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking that the matter proceed on an undefended basis.
Each party where represented provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.In the event that the mother does not comply with paragraph 3 of the orders made on 4 March 2015 to attend upon Dr E for the purposes of a psychiatric assessment, then the father is at liberty to be excused from attendance.
B.The mother has provided the Independent Children’s Lawyer and the Court with her current address.
C.The mother left Court during the making of the orders at 17.21 pm.
Orders Made 15 April 2015
IT IS ORDERED THAT
Paragraph 1 of the orders of Judge Small in the Federal Circuit Court made on 16 December 2013 be discharged.
The applicant Mr Maher be appointed trustee for the sale (“Trustee”) of the property situate and known as F Street, Suburb G, in the State of Victoria (“the Suburb G property”).
For the purposes of his appointment as Trustee, he has all the powers of a Trustee for Sale of real estate appointed pursuant to the laws of the State of Victoria, including or in addition thereto, the Trustee is empowered to do all things, including signing all documents necessary to effect a sale of the Suburb G property including but not limited to:
(a) determining whether the sale is to be by private treaty or auction;
(b) determining the Real Estate Agent or Agents with whom to list the Suburb G property; and
(c) determining the sale price, including the listing price from time to time, or the reserve price in the event of sale by auction; and
(d) nominating the solicitor/s to act on the conveyance of the Suburb G property.
The Trustee is further empowered to sign all documents as may be necessary to apply for financial relief for the respondent and the applicant from “Westpac Assist” in respect to the home loans secured against the Suburb G property for a moratorium on the mortgage repayments and deferral on any foreclosure proceedings pending any sale of the Suburb G property.
The respondent on or before 4.00 pm 21 April 2015 do all acts and things and sign all documents as may be necessary to procure a withdrawal of caveat number … (“the caveat”) in the name of H Legal over the Suburb G property, and do all acts and things and sign all documents as may be necessary to cause the caveat to be withdrawn forthwith.
Upon the settlement of the sale of the Suburb G property, the Trustee apply the proceeds of sale as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to repay to Westpac Banking Corporation the amount outstanding for home loan accounts numbers … and … (“the home loans”) and to discharge mortgage registration number … secured over the Suburb G property; and
(c)Thirdly, the balance (if any) to be paid into an interest bearing account administered by Farrar Gesini Dunn lawyers in the joint names of the respondent and the applicant pending written agreement between the parties or order of the Court.
Costs of the applicant be reserved.
Liberty to apply to the applicant on short notice.
IT IS NOTED THAT:
A.A copy of this order is to be served on the former solicitors for the respondent H Legal.
B.The respondent was called outside of Court at 10.38 am today and there was no response to that call by the respondent. The respondent was also sent an email from the Court last night confirming the details of the hearing this day.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maher & Mills has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3562 of 2013
| Mr Maher |
Applicant
And
| Ms Mills |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding concerns competing interim applications regarding property and parenting issues. Interim orders were made on 14 and 15 April 2015.
The substantive proceedings were transferred from the Federal Circuit Court to the Family Court by her Honour Judge Small on 9 October 2014 and remain listed for trial on 9 July 2015.
This hearing proceeded by way of oral submissions based upon the parties’ respective affidavits and statements of financial circumstances. The evidence was untested. The documents relied upon by the parties are listed in Annexure A.
In the substantive proceedings, the applicant is the father and the respondent is the mother of two children of the relationship. The children are B born in 2008, aged six years, and C born in 2010, aged four years.
The only real property of the relationship is F Street, Suburb G (“the Suburb G property”) which is jointly owned. The Suburb G property is encumbered by a mortgage to the Westpac Banking Corporation securing two home loans and is subject to a caveat lodged by the respondent’s former solicitors to secure unpaid legal fees. It was uncontroversial that the mortgage payments were in arrears and the bank had notified the parties that if the default was not remedied enforcement proceedings would be taken.
The mother vacated the property immediately prior to the first hearing day. The father had not received notification about this until the mother informed him in open court.
The mother had interim orders for exclusive possession of the Suburb G property where she had been living with the children. However, the mother had been unsuccessful in refinancing the mortgage pursuant to interim orders made by consent on 4 March 2015.
Hearings on 14 and 15 April
On 14 April 2015, in addition to procedural orders, I varied the interim orders made by her Honour Judge Small in the Federal Circuit Court on 9 October 2014 and extended the Airport Watch order until 31 July 2015 regarding the children. The variation regarding the father’s time to be spent with the children reflected the proposals of the Independent Children’s Lawyer supported by the father.
After providing brief reasons but before pronouncing the interim parenting orders, the parties were informed that I would provide written reasons. Whilst pronouncing the interim parenting orders, the respondent, who was not legally represented, indicated that she did not agree with the orders, that she proposed to file a further Notice of Risk of Child Abuse and that she would appeal. She indicated that she did not wish to participate any longer in the proceedings and left the Court. The mother had made submissions regarding written proposals about the property provided by counsel for the father during the hearing.
Before the mother left the Court, because of the lateness of the hour, I had also indicated to the parties that the application for the sale of the Suburb G property would be adjourned part-heard until the following day because further submissions were required in respect of the father’s written proposals.
The mother was notified by the Court by email at the conclusion of the hearing on 14 April 2015 confirming that “as proposed and discussed today in Court, the interim property matters remain listed” for the following day. The mother did not attend on 15 April 2015 and the hearing regarding the Suburb G property continued in her absence.
Further submissions were made by counsel for the father concerning the written proposals which had been provided to the mother the previous day and interim property orders were then made.
These are my reasons for the orders made on 14 and 15 April 2015.
The competing proposals for interim parenting orders
The mother sought that the interim orders made in the Federal Circuit Court by Judge Small on 9 October 2014, for the father to spend time with the children be suspended for 12 months. Amongst other things including provision for the father to spend time with the children during school holiday time, those orders provided for the father to spend time with the children each alternate weekend from after school and day care (or 3:30 pm if not a school day) on Friday to 7 pm on Sunday and each alternate Wednesday from after school and day care (or 3:30 pm if not a school day) to 7 pm.
The father and the Independent Children’s Lawyer sought that the interim orders for the father to spend time with the children be extended to provide for the return of the children to school and day care to minimise the contact between the parents at changeover.
The mother also sought that she have sole parental responsibility for the children and that they live with her as the primary carer. The interim orders made by Judge Small on 9 October 2014 already provided that the children live with the mother.
No submissions were made about parental responsibility in the hearing.
An interim order of Judge Small made in the Federal Circuit Court on 11 June 2013 provided for the children’s passports to be delivered to the father’s solicitors, to be held on trust for the parties until further order, and for the children’s names to be placed on the Airport Watch List until 11 June 2015. The mother sought that the children’s passports be returned to her as she proposed to travel with the children to Country J in September this year. The father sought that the Airport Watch List order be extended for an additional two years. This was opposed by the mother.
The mother also sought that the father provide her with a memory stick of the children’s photographs which were stored on the family laptop. No submissions were made about this issue and it was adjourned for consideration in the trial with the substantive issues.
The competing proposals for interim property orders
The father (hereafter referred to as “applicant” for the purposes of the application for interim property orders) filed an Application in a Case which sought the following orders:
·That both parties do all acts and things and sign all documents to immediately place the Suburb G property on the market for sale and that the terms and conditions of sale be as agreed between them.
·Failing agreement the applicant sought that the Suburb G property be listed for sale with an agent nominated by the Real Estate Institute of Victoria, that the reserve price be no less than $300,000 and that the parties be guided by the agent as to the most appropriate method of sale.
·That the respondent do all acts and things and sign all documents to procure a withdrawal of the caveat over the property in the name of her former lawyers and do all acts and things as may be necessary to cause the caveat to be withdrawn.
·That upon settlement of the sale of the property, the proceeds be applied to pay all costs, commissions and expenses of the sale, to repay the outstanding home loans in order to discharge the mortgage over the property, to pay out the applicant’s Flexi Loan amounting to $28,000 and that the balance be paid into an interest-bearing account to be established in the joint names of the parties for distribution between them at the time of their final property orders.
·That the parties do all things and sign all documents as may be necessary to apply for financial relief from Westpac Assist in respect of the home loans, including but not limited to deferring any foreclosure proceedings pending sale of the property.
·The applicant also sought an order for the costs of his application.
Background
It does not appear to be in dispute that the parties commenced a relationship in or around 2002, when the mother was around 29 years of age and the father was 34 years of age and that their relationship continued for a period of around 10 years. Following separation in 2013, the father thereafter commenced family law proceedings in the Federal Circuit Court by way of filing an application seeking final parenting and property orders in May 2013.
It is important to note that on 9 October 2014, her Honour Judge Small made interim parenting orders after a contested hearing in the Federal Circuit Court which included taking into account B’s anxiety and behavioural problems, two family reports of Dr D, and the judgment of Magistrate Radford from intervention order proceedings held in 2014. Those interim orders were made after the investigations by the Department of Health and Human Services resulted in no further action being taken.
The interim orders provided for the children to live with the mother and for the father to spend specified increasing time with them both during the week, on weekends, on special occasions (Christmas and New Year’s) and during school term holidays and the long summer school holidays.
Judge Small transferred the matter to the Family Court on 9 October 2014.
Various interim property applications were before me previously in the Judicial Duty List on 4 March 2015, where procedural orders were made listing the substantive proceeding for mention in August. Orders were made by consent for the respondent mother to refinance the housing loans for the Suburb G property. At this hearing the parties had agreed to participate in family therapy at the father’s expense and to attend for a psychiatric assessment before the matter proceeded to a trial.
However since those consent orders were made the mother indicated at the hearing on 14 April 2015 that she was now ambivalent about attending the psychiatrist or the family therapist because the children were unsettled and she had just moved house. She also stated that B was already seeing Dr I. Because of the mother’s change in attitude in court and her ambivalence, Counsel for both the father and the Independent Children’s Lawyer submitted that the family therapy which had formerly been agreed upon, no longer seemed appropriate given that in all likelihood the mother would not cooperate.
Procedural orders
There seemed to be no dispute that the family therapy would no longer be appropriate and the parties ultimately sought that a date be fixed for trial. Procedural orders were made fixing the trial date for 9 July 2015 and arrangements for a family report to be prepared.
Interim parenting issues
Despite the interim parenting orders previously made by Judge Small providing for the father to spend time with the children, the mother unilaterally withdrew the children from spending time with him from 6 March 2015. This occurred following an interim hearing about property matters in this Court on 4 March 2015.
Essentially it was the mother’s application that the children cease to have any contact with the father for a minimum period of one year and thereafter that any time with him be supervised.
In his affidavit filed 19 March 2015, the father deposed that on 19 January 2014 the mother made an allegation that he had hit B during the weekend between Friday and Sunday which he denied. The mother deposed that as a result of these allegations the Victoria Police filed an application for an intervention order against him on 22 January 2014 naming both children as the affected family members. This application was heard in the Magistrates Court over five days and on 6 June 2014 Magistrate Radford made a finding that the father did not hit B, that an act of violence was not likely to continue into the future and dismissed the application for intervention order.
The father deposed that notwithstanding the outcome of those proceedings, the mother did not make the children available to him.
The father deposed that following recommendations by Dr D and interim orders made by Judge Small on 9 October 2014 he has spent time with the children which he has very much enjoyed and deposed that it had “gone well”. He deposed that “[t]he last time I saw the children they were fine” and he does not know why the mother suddenly terminated his time with the children.
The father sought orders dismissing the mother’s application to suspend his time with the children and sought further interim orders to implement the recommendations made by Dr D in her Family Report dated 2 October 2014, namely that his time with the children be increased to five nights per fortnight.
Ultimately, the father supported the proposals of the Independent Children’s Lawyer that the interim orders made by Judge Small be varied to provide for the applicant to return the children to school and day care after spending time with him to minimise any conflict between the parties. This proposal effectively extends the children’s time with the father so that he return the children to school on a Monday morning rather than coming into contact with the mother to return the children at 7.00 pm on each alternate Sunday and to return the children to school and day care on each alternate Thursday morning instead of Wednesday night at 7.00 pm.
Circumstances since the father’s contact with children ceased
The father deposed that on 5 March 2015 his lawyers received an email from the mother stating: “Please advise your client that access between him and the children is terminated effective immediately”. The mother did not disagree with this statement.
The mother filed a Notice of Risk of Child Abuse, Family Violence, or Risk of Family Violence on 16 March 2015. The mother made the following claims in that document:
·both children witnessed the father threatened to stab the mother with a large kitchen knive[sic];
·eldest child reports physical assault by the father to his carer and the police take up the prosecution;
·eldest child alleges he has been told by the father to hurt mum and take out his anger on the home;
·both children have alleged that they are afraid of their father;
·both children have reported to other parties their fears about having to spend time with the father;
·the eldest child has exhibited escalating behavioural problems since contact has resumed with the father. He has physically destroyed property, been violent towards the mother and his sister and has shown extreme emotional swings.
The facts relied upon by the mother which are alleged to constitute risk of abuse are as follows:
1. The father having unsupervised access.
2. The father not seeking or receiving treatment for his anger management problems.
3. The ages of the children and their inability to protect themselves.
4. That both children are at or near a crucial age in their mental development and a [sic] vulnerable to negative influences.
5. Lack of self-awareness by the father. Exhibits blind rages and uncontrollable temper and is capable of unpredictable behaviour.
The response from the Department of Health and Human Services dated 13 April 2015 (“the DHHS response”) was released to the parties and the Independent Children’s Lawyer on the morning of the first hearing. This response refers to matters which were investigated by the Department of Health and Human Services in early 2014 before the interim parenting orders were made by Judge Small. It would appear that four reports were made between January and February 2014 and that the fourth report was a repetition of matters which had already been reported.
In summary, the DHHS response indicates that child protection conducted interviews with the respondent and the children after reports were received in January and February 2014. The response notes that there was an anticipated hearing in the Federal Circuit Court in October 2014 and that the Suburb G police contacted child protection on 13 January 2014 “ to state that the mother is refusing to hand over the children to the father”. It is also recorded that the day carer noted that the mother was intending to breach the court orders due to her fear about the children’s well-being in the care of the father. The report states:
It was assessed that the probability of future harm is low given [this] the concerns regarding the father could not be substantiated in this instance, and this matter would be more appropriately dealt with in the FLC.
The DHHS response refers to “disclosures” made by the children when interviewed by protective workers as follows:
[B] disclosed to protective workers that he:
·His Father hurts him; he was hit by him in the face twice and punched him in the tummy 3 times.
·His father pushed him on the trampoline and jumped on his face and made him bleed.
·His father punched him because he was opening [C’s] presents, they were fighting so his father hit both of them in the face. It happened on a weekend.
·He last saw his father in [C’s] bedroom a long time ago because hurts (sic) his father hurts him.
·He stated that he was scared of his father.
·He stated that his father has also hurt [C], he has hit her two times.
·He stated there were no good things about his father.
·He stated that he did not want to see his father because he is hurt by him.
·He feels safe at home.
·He stated that he never wants to see his father again.
In relation to remembering things between his mother and father he stated that he remembered bad stuff, his father smashed his mother’s phone. He also recalls his father punching his mother in the face and the police coming and took his father away. He said that his father came back and stole the passports.
[C] disclosed to protective workers that she:
·She does not see her father and he “whack us.” This happened on the trampoline and in her bedroom, because she disobeyed her father.
·What makes her happy is playing with her friends
·What makes her sad is she is a little bit sad from her father. She misses him and would like to see him again.
·However she is not allowed to see her father as he “whacks” [B] and “whacks” her on the arm.
·Sometimes her father scares her[1]
[1] Response from the Department of Health and Human Services dated 13 April 2015 at page 4.
The DHHS response records that the father was interviewed on 10 April 2015 by telephone after receiving a letter from the Department. The father denied all allegations and referred to a Family Court report supporting the positive attachment and bond between himself and the children. He denied assaulting his son and stated that the police had been involved and that he had not been prosecuted. In response to an allegation that he had threatened the mother with a knife in the presence of the children, he stated that this was a story made up by the mother and was an incident which never occurred.
The conclusion of the Department of Health and Human Services was that it was unnecessary to take any further action.
Since the early 2014 investigation, Judge Small made the interim parenting orders and there was no other material before this Court regarding any new allegations being investigated by the Department.
In her affidavit material, the mother deposed that B remains fearful of the father and has been distressed on his return from spending time with the father. She deposed that he has damaged property, punched holes in the walls and physically lashed out at family members.[2]
[2] Affidavit of the mother sworn 2 April 2015.
The Family Report of Dr D
Dr D prepared a Family Reports in this matter dated 5 December 2013 and an updated Family Report dated 2 October 2014. This is untested evidence in this Court.
In the latest report Dr D stated:
Children of [B’s] age and stage, can still be so easily led; whereby they are extremely susceptible to leading questions and can easily come to believe what they say is the truth, even when it is not; and whereby leading questions, coercions, encouragements or rewards can lead children into making false or misleading statements; and there is no doubt in my mind that the mother has engaged in leading and colluding behaviour regarding other issues, based on my interviews; and the reality is that if [B] either believes the allegation is true, or he is saying it to please his mother, or even if he is being coached; this would easily explain why he might repeat the same or similar comments to others, such as the day-care worker, and police.
However, [B’s] own reports about this and other issues are inconsistent, and the mothers reports are unsubstantiated, and there seems to be no corroborating evidence, or corroborating behaviour by [B] to support these allegations (other than behavioural issues that have been long-standing); and rather, there seems to be more evidence to suggest that the truthfulness of these allegations is unlikely; and certainly this conclusion seems to be supported by DHS, police, and Magistrate Radford, and it is consistent with my own opinion. Magistrate Radford also makes a good point, and namely that if the mother had real concerns that this kind of violence would occur again, then she wouldn’t have facilitated two more contact visits after the alleged incident on 17 January 2014, nor offered to facilitate 3 or 4 more visits after this, which the father allegedly declined; and similarly, if [B] was really as fearful and concerned as the mother suggests, and as adamant that he doesn’t want to see his father, then it is unclear why he would tell police that he wants to see his father and likes going there, and also tell the writer the same; and certainly you wouldn’t expect him to be so seemingly happy in the father’s presence, as was observed in this updated family report, despite him saying negative things about the father in interview.
In summary, I see no reason why the father’s time with the children should not begin again immediately.[3]
[3] Updated Family Report of Dr D dated 2 October 2014 at paragraphs 66-68.
Dr D went on to report that there needed to be a gradual build up in time so that the children were spending time five nights a fortnight with the father. She also highlighted that most of the report had been focused on B because C presented as a “happy and well-adjusted girl, and the majority of the issues and concerns raised were about [B], and not [C].”[4]
[4] Updated Family Report of Dr D dated 2 October 2014 at paragraph 72.
Dr D recommended as a matter of urgency that the family begin attending family therapy with a family therapist/psychologist who is experienced with family law matters, for reportable counselling.
Dr D also recommended that B attend upon Dr I for individual psychological therapy with regards to anxiety and behavioural problems and managing the difficult family circumstances.
Affidavit of Dr I
Psychologist Dr I deposed that he had seen B since 25 May 2013 and provided two reports.[5] He indicated that there was a period of nine months when he did not see B but that he had recommenced seeing him from 20 November 2014.
[5] Dated 5 September 2013 and 19 March 2015.
Dr I’s reports rely upon the report of the mother about B’s behaviour and do not appear to have been informed by any information from the father. This is untested evidence.
In his latest report Dr I referred to the mother returning to see him for therapy as a result of deterioration in B’s behaviour:
…seemingly due to the fact of that his father had regained access on a regular basis. There were again episodes of anger and negative behaviour which were most prevalent following access visits to the father. His mother reported that there were times when he was uncontrollable. His behaviour was particularly bad over the Christmas/New Year period and this seems to be linked with period of time he spent with his father during that time.
The report is unclear as to whether the mother was consulting Dr I for her own therapy. It is unclear as to whether there has been any merging of any therapy for the mother with therapy for B.
Dr I refers to B expressing concern at his session on 9 February 2015 following a visit to his father. The concerns expressed were that the father “spent a lot of time” yelling at him and his sister and that his father removed the battery from his mobile phone and replaced it with one that did not work.
Dr I refers to another complaint by B at a session on 23 February 2015 where he stated quite clearly that he did not wish to go to his father because his father had “punched him in the stomach” because he was fighting with his sister and his father was telling him that he was “dumb and stupid”.
Dr I reported that B made it clear at his session on 10 March 2015 that he did not wish to see his father because he hits him, yells at him and he is frightened of him.
Dr I repeats concerns from his previous report that the father has temper outbursts and anger episodes which have a negative impact on B. He states that he remains concerned about the:
…significant anxiety [B] displays regarding his father’s anger outbursts and the impact these have on [B’s] psychological and emotional development and well-being.
Without any indication that he has spoken with the father, Dr I states:
It appears that [B’s] father is still not able to deal effectively with the behavioural issues of [B] and his sister and reacts negatively and angrily as a result. I would still recommend that [Mr Maher] undergo effective parenting and anger management courses, in order to be better able to deal with such issues in the future.
He recommends that B continuing in counselling so that his behavioural responses and psychological and emotional well-being can continue to be monitored.
Dr I concludes that he remains concerned for B’s well-being when he is with his father, “given the things B has told me over the period of therapy; and that B’s behaviour improves significantly when he does not have access visits with his father.”
Conclusion about interim parenting issues
It is not possible in the usual course of events to resolve contested matters of facts in interim proceedings.[6] I have considered and applied the legislative pathway outlined in Goode and Goode (2006) FLC 93-286 (“Goode”) at [82].
[6] Goode and Goode (2006) FLC 93-286.
The parties disagree about a large number of factual matters. The manner in which an interim hearing is conducted (without the opportunity to observe the parties under cross-examination intended to test the validity of assertion and counter assertion) means that the Court is unable to reach definitive conclusions about the issues in dispute.
The following facts do not appear to be in dispute:
·Judge Small made interim orders in the Federal Circuit Court on 9 October 2014 providing for the father to spend time with the children following recommendations made by Dr D;
·the mother unilaterally withheld the children from contact with the father notifying him on 5 March 2015;
·the mother filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 16 March 2015 incorporating undated allegations which are denied by the father;
·the father has been investigated by the police in early 2014 regarding a complaint of assault upon B and has not been charged;
·Magistrate Radford found[7] that regarding the incident on 17 January 2014 where the mother alleged that the child had told her that the father had hit him in the face, that the mother allowed two further subsequent visits to the father after this incident and after advising the police to the contrary. He also found that the mother offered a further three or four times for the children to spend time with the father being 7, 9 and 10 February 2014;
·Magistrate Radford found that the mother’s evidence of what the child said “is not the language of a five-year-old”. He found “In my view much of the mother’s account was exaggerated and self-serving.” He also found that B’s account as relayed to the mother and the police included also an incident on a scooter where he hit his nose on the ground; and
·There has been a history of conflict between the parties at changeover.
[7] Annexure RM 3 of the applicant's affidavit filed 19 March 2015
The significant contentious issues between the parties are:
·whether the father was physically abusive towards the mother during the relationship in the presence of the children;
·whether the father has physically abused B in January 2014 or some other time unspecified;
·whether the children are in fear of the father; and
·whether the mother has acted to prevent the father from spending time with the children and influenced the children negatively against the father.
Before me in court, the mother asserted that she had difficulty managing B’s behaviour when he returned from spending time with his father. She deposed that B refused to go to school one Friday knowing that he was to spend time with his father on the weekend. It is the mother’s case that B is fearful about spending time with his father. The mother has deposed that two days before the last hearing in this Court, B put his foot through the wardrobe mirror and the day before the hearing, he broke down and sobbed uncontrollably and stated that he did not want to be made to see his father again. She also deposed that B told her that “his father was making him bad”. She has also deposed that:
In a moment of calm and remorse after an episode of outrage, [B] confided that his father was asking him to go home and hurt his mother and take his anger out on his mother.
The mother deposed that both children reacted differently immediately preceding visits with the father. She deposed:
For [C] it showed in nervous excitement and erratic behaviour and for [B] it showed as severe anxiety and stress.
The mother deposed that both children started exhibiting more severe behavioural disturbances after time spent with the father, especially B who became both more aggressive and increasingly anxious.
The mother has repeated concerns documented previously in material filed in the Federal Circuit court before the interim orders were made by Judge Small.
When the mother unilaterally withheld the children from spending time with the father, his solicitor requested that the mother particularise her reasons for doing so.
The mother responded by email dated 14 March 2015[8] attaching a copy of her application to suspend all access immediately and stated:
This is in the best interest of the children and you can assure your client that the children are not suffering from any anxiety. Reports to follow shortly.
[8] Annexure RM 9 the father's affidavit filed 19 March 2015.
The father denies the allegations raised by the mother.
Parental responsibility
At paragraph 56 in Goode (supra) the Full Court explained:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61 DA, subject to qualifications in sub-sections (2), (3) and (4).
The issue of parental responsibility is for final determination in the trial. Section 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that when making an interim order, the presumption of equal shared parental responsibility applies unless the court considers that it would not be appropriate in the circumstances. In this case there are serious issues raised which include allegations by the mother of violence towards her in the presence of the children and physical abuse of B. These allegations are denied by the father. It is inappropriate to apply the presumption of equal shared parental responsibility where it is not possible to determine the issue on an interim basis without a full testing of the evidence.
Accordingly I propose to deal directly with the consideration of the best interests of the children pursuant to the provisions in the Act.
In deciding to make any parenting order the child’s best interests must be the paramount consideration under s 60CA of the Act. In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
The primary considerations
The primary considerations contained in s 60CC(2) of the Act are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations in proceedings instituted after 7 June 2012, such as these, greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[9] I have accordingly taken this into account in determining the best interests of the children.
[9] Family Law Act 1975 (Cth) s 60CC(2A).
The additional considerations are listed in s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case and have considered the additional considerations in the context of the primary considerations.
Doing the best I can on the material before me and accepting that there remain many disputed facts incapable of resolution at this stage, I am satisfied that it is in the best interests of the children for the interim orders made by Judge Small to continue with some variation to relieve the children from being exposed to potential parental conflict during changeover.
There is no independent evidence of any change in circumstances of such significance warranting the suspension of the time which the children are required to spend with the father pursuant to the interim orders carefully crafted by Judge Small.
The latest undated allegations against the father made by the mother in a Notice of Risk appear to be the same allegations which have already been investigated in 2014 by police and which were not substantiated after investigation by the Department of Health and Human Services and where there has been a contested hearing about an intervention order in the Magistrates’ Court in 2014.
The affidavit of Dr I is untested evidence which appears to rely entirely on the report of the mother. It is unsurprising that the Independent Children’s Lawyer does not place any significant weight on this report when it is read in conjunction with the report of the family consultant. The father has not provided any information to Dr I notwithstanding that this was contemplated in the interim orders. The reason for this was not satisfactorily explained by the father.
However whatever the reason, there is no evidence that Dr I has been provided with the information contemplated by the interim orders albeit the mother asserted from the Bar table in court that she had provided Dr I with the “the Ruling from the Magistrates’ Court hearing”.
I have taken into account that the mother deposed that the arrangements for the children spending time with the father appeared to be “workable “at the outset.
The mother has emphasised that B’s behaviour deteriorated before the last hearing in this Court. It is open to infer from this that the mother has linked his behaviour to the prospect of her appearance in court.
The procedure for making interim parenting orders is an abridged process where the scope of the inquiry is significantly curtailed. I have had due regard to the factors under s 60CC of the Act in considering the best interests of the children and weighed those in favour of ensuring that the children have a meaningful relationship with both parents.
However I am satisfied that the proposal advanced by the Independent Children’s Lawyer is in the best interests of the children to avoid any distress caused by the changeover and ensure that the children have the opportunity to benefit from a meaningful relationship with both parents.
I am entitled to have regard to the care arrangements in place before the hearing and before the mother notified the father that she was not prepared to make the children available to spend time with him.[10]
[10] See Goode (supra) at par [73].
Restricting changeovers to school and day-care as far as possible, will ensure that any opportunity for conflict between the parents is minimised, thereby reducing the anxiety for the children.
I do not place any weight on the untested evidence of the mother about the wishes of the children who are aged only four and six years. There will be an opportunity to test the evidence of Dr I in the substantive proceedings. His untested evidence appears to rely entirely upon the report of the mother and what B has told him in the context of the mother’s application to suspend all time with the father.
I accept the submission of the Independent Children’s Lawyer that in the circumstances of this case, including the background of unsubstantiated complaints investigated by the Department of Health and Human Services, the findings in the Magistrates’ Court, and the lack of information from the father to Dr I, that little weight can be attributed to the untested evidence of Dr I.
Where separated parents are in conflict, there may be many reasons for anxiety and changes in the behaviour of children. Apart from nervous excitement deposed to by the mother, there would appear to be no allegations of any adverse reaction to the father in C and no reason for the arrangements determined by Judge Small to be suspended.
B’s alleged bad behaviour and the alleged link to the time he spends with his father will be an issue to be tested and determined at trial.
The orders proposed by the Independent Children’s Lawyer will not interfere with B attending to continue therapy with Dr I which was recommended by the family consultant.
Passports and airport watch list order
The father’s previous solicitors, are presently holding the children’s passports on trust in accordance with interim orders made in the Federal Circuit Court on 11 June 2013.
Having regard to the following :
·statements made by the mother about her view of the need for the children to maintain contact with their family in Country J;
·the fact that the mother has no plans to travel with the children before September 2015;
·the mother’s hostile attitude towards the father and her statements that she would not allow the children to spend time with the father;
·the mother’s propensity for taking unilateral action to stop the children spending time with the father;
·the fact that the trial is listed for 9 July 2015; and
·the submissions of the Independent Children’s Lawyer in support of an extension of the Airport Watch List order;
I considered it appropriate to extend the Airport Watch List orders already on foot until the conclusion of the trial when there will be a testing of the evidence and an opportunity for appropriate consideration. For the sake of caution, to allow for any delay during the hearing of the trial, the Airport Watch List orders were extended until the 31 July 2015.
Interim property issues
On 14 April 2015, the respondent stated that she had vacated the Suburb G property, handed the keys to the Westpac Bank (“the Bank”) and moved into rental accommodation with the children. She claimed to have notified the solicitors for the applicant by mail but was unable to produce a copy of the correspondence. The respondent stated that she wanted nothing more to do with the Suburb G property and that she wanted it to be sold by the Bank as soon as possible to satisfy the liability to the Bank.
During the first day of the hearing, the solicitors for the applicant received a letter by post from the respondent which was ultimately tendered as Exhibit A when it could be located on the second day of the hearing. This letter from the respondent to the solicitors for the applicant notified them that she had vacated the property and provided the keys to the bank. The respondent also enclosed a copy of the letter that she had provided the bank authorising them to sell the property.
After becoming aware of this information, on 14 April 2015, counsel for the applicant produced a written document of proposals of the applicant which was provided to the respondent. These proposals sought that the respondent be appointed as trustee for the sale of the property and to make application to the Bank for a moratorium on the mortgage payments and a deferral of foreclosure so that the property might be sold by the applicant and the parties’ liability to the bank discharged. The proposals were similar to proposals previously sought to be agitated by the applicant at the earlier hearing in March 2015 where orders were made by consent to allow the respondent to attempt to refinance the loans on the property.
The applicant also sought that the balance of the proceeds of sale be held on trust for the parties by his solicitors after paying out the applicant’s Flexi Loan in the amount of $28,000.
The respondent opposed the appointment of the applicant as trustee and sought that the Suburb G property be sold by the Bank. The respondent agreed that the proceeds of sale be applied to the payment of the sale costs and commissions and to the discharge of mortgage. However she proposed that her legal costs approximating $38,000, be paid from the proceeds of sale and opposed the repayment of the applicant’s Flexi Loan. She submitted that the Flexi Loan would be an issue in the trial as there was a dispute between the parties as to the purpose of that loan. It is the applicant’s case that the Flexi Loan was obtained for renovations to the Suburb G property.
By her Amended Application in a Case, the respondent also sought that the father immediately return to her the 4WD motor vehicle and that she be “awarded” the applicant’s superannuation fund. There were no submissions by either party about these issues but these issues are matters where the evidence remains untested and are for determination in the trial. These applications were adjourned to be heard in the trial.
On the second day of the hearing, 15 April 2015, counsel for the applicant sought that the costs of that hearing be reserved.
Conclusion about the interim property application
There is no dispute between the parties that the Suburb G property should be sold and the proceeds applied to the commission, costs of sale and to discharge the joint liability of the parties for the housing loans.
For the purposes of the Federal Circuit Court proceedings, the parties obtained a valuation of the Suburb G property of $300,000.
There is no reason to prevent the parties from attempting to obtain the highest price for the sale of the Suburb G property by making application to the bank for a moratorium on the mortgage payments and for deferral of the foreclosure to allow for a sale to be conducted by the applicant. The respondent has been unequivocal about her desire to have nothing further to do with the property and having regard to her conduct during the hearing, I would have no confidence that she would cooperate with the applicant to seek a deferral of the foreclosure by the bank.
The evidence about the applicant’s Flexi Loan of $28,000 is untested and is an issue between the parties in the substantive proceedings. No findings can be made about this issue on an interim basis and accordingly it is inappropriate to make any order until the evidence has been tested.
Costs application
At the conclusion of the hearing regarding the property on 15 April 2015, I acceded to the application by counsel for the applicant for the costs of that hearing to be reserved.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 8 May 2015.
Associate:
Date: 8 May 2015
ANNEXURE A
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
Application in a Case filed 6 March 2015
Amended Application in a Case filed 2 April 2015
Affidavit of the mother filed 6 March 2015
Affidavit of the mother filed 9 April 2015
Affidavit of psychologist Dr I filed 1 April 2015
The father relied upon the following documents:
Application in a Case filed 2 April 2015
Response to Respondent’s Application in a Case filed 19 March 2015
Affidavit of father filed 2 April 2015
Affidavit of father filed 14 April 2015
The Independent Children’s Lawyer relied upon the following documents:
Affidavit of family consultant Dr D filed 23 March 2015
Response by Department of Health and Human Services to Notice of Child Abuse, Family Violence or Risk of Family Violence dated 13 April 2015
Key Legal Topics
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Family Law
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