Makeva and Chadli

[2012] FamCA 229

FAMILY COURT OF AUSTRALIA

MAKEVA & CHADLI [2012] FamCA 229

FAMILY LAW – PRACTICE AND PROCEDURE – Appropriateness of transfer from Federal Magistrates’ Court – parenting matter – procedural fairness

APPLICANT: Ms Makeva

RESPONDENT: Mr Chadli

INDEPENDENT CHILDREN’S LAWYER: Ms S Wunderlich

FILE NUMBER: MLC 2442 of 2008

DATE DELIVERED: 24 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brookes

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Agricola Wunderlich & Associates

Orders

IT IS ORDERED THAT:

1.This matter be listed for mention in court before me on 22 March 2012 at 3.00 pm for directions for trial and to determine any applications for interim parenting orders in relation to the children K born … April 1997, L born … April 1999, D born … October 2001, A born … May 2003 and R born … May 2005.

2.I extend the time for compliance by the father with paragraph 5 of the Order made on 21 December 2011, pursuant to which he was required to file any amended application, response and all evidence in support of his case, to 12.00 noon on 1 March 2012 NOTING THAT the father is required to respond paragraph by paragraph to the affidavit of the mother sworn on 3 November 2011.

3.By 12.00 noon on 29 February 2012 the solicitors for the wife file and serve evidence of the fact that the mother’s affidavit sworn on 3 November 2011 was translated to her prior to swearing it, such affidavit to be by the interpreter, or other appropriately qualified person who did translate the affidavit to the mother.

4.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Riddiford or Sikiotis for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpeoana(s).

5.By not later than 12.00 noon on 9 March 2012 the parties file and serve any application for interim parenting orders he or she seeks be determined by me on 22 March 2012, together with any evidence in support of that application.

6.Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court

a)      The mother is to attend at Level 5 of this Registry of the Court at 9.15 am on March 1 2012;

b)     The father attend at 11.00 am on 1 March 2012;

c)      On 1 March 2012 both parties remain in the precincts of the Court until excused by the family consultant;

d)     The mother and father be responsible for bringing the children in his or her care to the Registry on Friday 9 March 2012 at 9.15 am:

e)      The sequence and organisation of all interviews and observations is a matter within the sole discretion of the Family Consultant;

f)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

g)      The Family Consultant may appoint further interviews for the parties and the children; and

h)     It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court by not later than 12.00 noon on 15 March 2012.

7.The Family Consultant may, at the direction of the Honourable Justice Bennett, be required for cross-examination on the adjourned date.

8.For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

9.By not later than 12.00 noon on Monday 27 February 2012 the father advise my Associate of the email address to which the parent and issues assessment may be sent in PDF format on the day that it is published and do so for the purpose of receiving that document without any delay.

10.The reasons for decision this day be transcribed and when settled a copy be placed on the court file and made available to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or the family consultant’s assessment or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2442 of 2008

Ms Makeva

Applicant

And

Mr Chadli

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me for directions for trial.  These parenting proceedings were transferred to this court on 7 November 2011 by Hughes FM who had been advised by an officer of this court that the matter could be dealt with finally in January 2012.  That was never to eventuate and it is most unfortunate that both the Federal Magistrate and the parties to the proceedings were led to believe it would be the case.

2. The matter was allocated to my docket in December 2011.  The proceedings concern five children:-

   a)K Chadli born in April 1997. He is a Year 10 student at V Secondary College;

   b)L Chadli born in April 1999. He is a year 7 student at V Secondary College;

   c)D Chadli born in October 2001. She is a year 5 student at S Primary School, St Albans;

   d)A Chadli born in May 2003. He is a year 4 student at S Primary School, St Albans;

   e)R Chadli born in May 2005. She is a Year 1 student at T School.

3. The four oldest children reside with the father and have done so since 2009. R resided with the father until 2010 when the father agreed that she could reside, albeit temporarily, with the mother and the mother’s adult daughter from an earlier relationship and her infant daughter, P, from a subsequent relationship. Department of Human Services have been extensively involved with the family.

4. When the proceedings were last before Hughes FM it was the date fixed for the final hearing of the case.  The issues for determination were confined to the residence of R (6 years) and the facilitation of the mother’s time with the four older children in the primary care of the father. A thorough and helpful overview of the family is set out in the reasons delivered by Hughes FM on 7 November 2011. I do not repeat any of that information other than to note that, on 7 November 2011, an adjournment of the final hearing was sought by the father because he wanted to retain a legal representation. It is a box file comprising 5 volumes and some 108 documents.

5. A brief perusal of the last three volumes of the court file indicates that on 18 May 2011, the Hughes FM allocated the matter a final hearing of three days duration to commence on 7 November 2011. At that stage, both parents were represented, the independent children’s lawyer’s appointment was requested to be extended to cover the children in the father’s primary care and a court funded family assessment was ordered with a report to be published by 19 September 2011. The father ceased to be legally represented when one Emmalaura Messer of Hartleys Lawyers filed a notice of withdrawal as lawyer on 19 July 2011 based on a notice sent to the father not less than one week beforehand.

6. The family report was released on 27 September 2011. It reads as a sound and thoughtful assessment of the family but it has not been tested by cross examination of the family consultant. Extracts from the evaluation and recommendations include the following:-

   35.[K] [L] [D] and [A] present as emotionally settled, living with their father, and appear to be benefiting from the routine/s on which he is clearly focused and the quality of care that he provides.  It is clear that, under the current arrangement, which was initiated by the parents, the children have been able to maintain close sibling relationships with their younger sister [R] during the regular time that she spends in the home.  Their interaction was observed to be natural and positive.  All of the children speak positively of their relationship with [the father] and present with a secure attachment to him, including [R].  

   36.It is also clear that the children retain a secure attachment to their mother, described by psychologist [Ms F] in 2009 as, ‘securely but anxiously attached’ and in 2008 as, ‘mostly securely attached.  The parents remain in dispute regarding the nature and amount of time the children have spent with [the mother] since Ms [F’s] updated report, but it is acknowledged that an extended period of no regular contact or communication has occurred through 2010 and 2011 thus far (approximately 18 months).  Despite this regrettable fact, the children made the most of their opportunity to ‘reconnect’ with their mother on the day of interview and there is no information, of which the Family Consultant is currently aware, to suggest that they would not benefit from re-establishing and continuing the time spending arrangements prescribed in the 11 June 2009 orders, including regular unsupervised overnight time on alternate weekends. 

   37.The children miss their mother and respond to her in a warm, though not physically demonstrative, manner that is likely to be consistent with their cultural background.  [The mother] presents as somewhat passive in her interaction with the children, as was the case throughout her supervised visits at [B Contact Service], according to their reports.  However it is not surprising that the emotional effects of the extended absence from their lives have been most acutely felt by the youngest children, [D] and [A], both of whom volunteered their preference to live with their mother again in the future.  Only [K] expressed ambivalence toward [the mother], during interview, though any resistance that he may have been expected to demonstrate toward her, once he was in her presence, did not materialise.  [K] enjoyed his time with his mother, which is likely to have a confusing effect for him, given the admiration and loyalty [K] expressed for his father.  These types of pressures should be avoided for all of the children, if possible, under future parenting arrangements, however the responsibility ultimately falls to the parents once new orders are made. 

   […]

   39.It is noted that DHS have been aware since December 2010 that [R] has been living with [the mother], contrary to the (then) Family Court Orders but by agreement between the parents, and have taken no action.  There have also been no protective concerns raised or investigated in relation to [the mother’s] youngest (and therefore arguably most vulnerable) child, [P] (2 years) living in her care. 

   40.Regarding the issue of [R’s] future residence, the Family Consultant’s view is that both parents are capable of providing adequate care for this young child who is, effectively, a part of two sibling groups.  The primary issue is, therefore, whether one parent is more likely than the other to encourage and protect the relationships [R] shares with her other parent and all of her six siblings. 

   41.[R] has lived with her younger sister for the majority of [P’s] life, possibly for the majority of the time that she herself can remember, and the two sisters were observed to interact closely throughout the day of interviews.  [The mother] has complied with the 11 June 2009 orders by continuing to deliver [R] to [the father] for weekend holiday visits, prioritising [R's] relationships with her siblings over her ongoing conflict with [the father], despite the fact she has not been able to spend the corresponding time with her other children.  In addition to these considerations, the four older children have not had the opportunity to form a bond or spend time with their half-sister, [P], who is and should be a significant person in their lives.

   42.[The father] presents as a caring and concerned parent.  He maintains that he has not prevented the four older children from seeing their mother, though if they chose to visit her he would hold significant concerns for their safety and would not support them staying overnight.  He says that [the mother] rejected the children when he attempted to comply with existing orders by taking them to her in Geelong; however that would suggest that [the mother] has been consistently travelling to Melbourne each fortnight to conduct changeovers for [R] without requesting time with the other children.  [The father] acknowledges that he willingly allowed [R] to live with [the mother] because he had been advised that there were no safety concerns and he believed it was appropriate for her to live with her mother until she reached school age.  That did not occur, and [R] has subsequently settled in to her prep year where, according to the school records, she is progressing well.  A move to live with her father and siblings in Melbourne would therefore represent not only a significant change in [R's] home life but also require her to change schools and form new friendships.  That said, change is a part of life for all children and there is no evidence to suggest that [R] would not be able to eventually adapt, particularly given she would be attending the same school as [D] and [A] and could expect the same level of educational support provided by [the father] to her brothers and sisters.

   RECOMMENDATIONS

   On the basis of this assessment it is respectfully recommended that:

   If the Court finds that the father's allegations can be substantiated and therefore spending overnight time with [the mother] would subject the children to an unacceptable level of risk, it is recommended that [R] should live with her father and all of the children should spend significant and substantial time with their mother, including weekly visits for the three youngest children and a minimum of fortnightly visits for [L] and [K], until such time as it can be established that there would be no risk of physical or emotional harm to the children if fortnightly overnight visits were to commence.

   If, however, the Court is satisfied that the children can safely spend regular overnight time in [the mother’s] care, it is recommended that [R] continue to live with her mother and younger sister, and that [K], [L], [D] and [A] immediately recommence alternate weekend visits in accordance with the previous orders of 11 June 2009. 

   Both parents may benefit from completing a Parenting Orders Program, with appropriate culture-specific support, such as that offered by CatholicCare’s ‘Our Kids’ Program at Footscray (ph 9689 3888) and Geelong (ph 5246 5600).

7. Some four months elapsed between the father becoming unrepresented and the final hearing but on 7 November 2011 he said that he required time to engage a lawyer. FM Hughes made interim orders that R remain living with the mother and that all five children be together each weekend by having alternate weekend time with the parent with whom he/she does not primarily reside. The alternate weekend regime was to commence on 11 November 2011. There was holiday time including the mother having all five children for one week commencing 23 December 2011 and two weeks commencing 6 January 2012. Changeovers were to be effected at B Contact Service in Geelong. As indicated, the learned Federal Magistrate published reasons for her decision. Quite apart from the complex family dynamics, the parents require interpreters of the Dinka language. Interpretation will necessarily prolong any contested hearing. At paragraphs 30 and 31 of her Honour’s reasons, she identifies each of the father’s allegations about the mother’s inadequate care of the children but was not “persuaded by the oral evidence of the father […] that his allegations, even if true, amounted to an unacceptable risk to [R] in the mother’s care”.

8. At an initial mention of the matter on 21 December 2011, I fixed a final hearing date of 12 June 2012. That date remains allocated to the parties.

9. Six weeks had elapsed between the hearing before Hughes FM and the mention before me but still the father had not obtained legal representation. On 21 December the father informed the Court that he had an appointment to see a new solicitor at the office of Victoria Legal Aid on 17 January 2011.

10. On 21 December 2011 I ordered, amongst other things, that the father file and serve an amended application or response and all of his evidence by 10 February 2012.  The father has not done so. 

11. On 21 December 2011 I also ordered that in the event that any party failed to comply with those orders, the matter may proceed to a final determination on the adjourned date (today) hearing without any further input by the defaulting party. 

12. Today the father attends court and says that he still requires further time to retain solicitors. He says that Mr Alan McMonies, who is not the same solicitor as he identified in November 2011, may act on his behalf. No party pressed for final orders in light of the father’s default.

13. I have sought to impress upon the father that legal representation is neither an entitlement nor a necessity and that the occasions on which the court would adjourn proceedings to permit him further time to obtain legal representation is at an end.  Hopefully the father will retain the legal representation he seeks. In the meantime, he should work on his case and prepare it as if he is going to represent himself. The father can have a further 10 days in which to comply with the order that he file and serve an amended application or response and his evidence. These are documents which should have been before the court on 7 November 2011 for the final hearing before FM Hughes which did not proceed.

14. Today the father says that he needs to amend the existing parenting orders so that the four children in his care are not required to spend time overnight with the mother. The mother has no notice of the father’s proposed application. Counsel for the mother says that her client proposes to make application for orders entitling her to spend time with the children in the father’s care for at least one half of the forthcoming school holidays parties. The father had no notice of that proposed application.

15. On the father’s part, he says that the mother’s home represents an unsafe environment for the four children in his care to visit or to remain overnight and he seeks that any provision for overnight time be discharged.  Needless to say, neither parent has filed an application and neither comes to court with evidence in a form that the court can entertain. This is a court of private law. Each parent is responsible for the running of his or her own case. In view of neither parent attending to his or her case with reasonable diligence, I could refuse to entertain any urgent interim parenting applications. However, there are five young children split between two households and four of the children are not spending much time with their young sibling in the mother’s household of whom the father is not the father. Each parent and the independent children’s lawyer must, and will, be accorded procedural fairness but I am prepared to have a family consultant re-assess the matter as soon as practicable and even before any interim applications or evidence is filed with particular regard to the four children in the father’s care having commenced to spend regular time with the mother in her household. I have cautioned each parent about the need to comply with the existing parenting orders unless or until those orders are varied or discharged.

1. According procedural fairness to all parties requires, amongst other things, that all parties know the application and evidence relied upon by any other party with sufficient time to be able to collect, file and serve any relevant evidence upon which he/she relies in response. That usually means that the application and evidence must be filed and served well before the court day rather than just on the day that the proceedings are listed for hearing.

2. I will adjourn this matter to the afternoon of 22 March when I can deal with the matter in 1 to 2 hours. I note that the next school terms holidays commence on Monday 2 April 2012 and are of two weeks duration.

3. I have ascertained that a family consultant can see the parties on 1 March 2012 and in all the circumstances I am satisfied that those resources should be allocated for the children in this family. In the meantime, the parents should make the interim applications they want within the time that these orders provide. If they comply within time, then I will determine the interim applications as best I can on 22 March. Whoever does not file their interim application within time is likely not to be able to have that application determined. On 22 March, there will be a published s 11F parent and children’s issues assessment and each party will have the opportunity to cross-examine the author of it subject to that hearing taking not longer than two hours.

4. The family consultant for the issues assessment will not be Mr S who prepared the earlier s 62G report.  Mr S is busy. I am satisfied that it is preferable to proceed with an alternative family consultant at an early date. 

5. Also on 22 March I will make directions for the final hearing fixed for 6 June 2012 if, in all the circumstances of the case, the children’s interests will be best served by retaining that date as the final hearing.

6. I have given consideration to notifying the Department of Human Services of these proceedings as the Department has had an extensive involvement with the family. The most reliable means of notification would be a s 91B referral. However, these proceedings are well advanced within this court and the family will be seen by another family consultant quite soon. I conclude that it would be inappropriate to require the Department’s to give consideration to a s 91B order at this stage as, in my assessment, there is no reason for the Department to be involved.

7. Finally, it was ordered that the father provide the court and the independent children’s lawyer with an email address to facilitate documents being delivered to him by email. In particular, these reasons which he may wish to provide to Victoria Legal Aid and/or any lawyers he now retains to act on his behalf and a copy of the s 11F parent and issues assessment which will be considered by court for the next hearing but which will only be published a matter of days prior to the next hearing. The father was to provide the email address by Monday 27 March 2012. However, as at the date of these reasons being settled, he has not done so. Apparently the father has not provided a telephone number to the Court.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 February 2012.

Associate: 

Date:  28 February 2012