MARTIN & BULLER

FAMILY COURT OF AUSTRALIA

MARTIN & BULLER

[2015] FamCA 565

FAMILY LAW – CHILDREN – Interim – Family violence – Where the mother seeks to vary existing interim parenting orders – where the ICL supports the mother’s position – where the father failed to appear at the hearing – order that the mother have sole parental responsibility for the children – order permitting the mother to change the children’s school – order that the mother be restrained from removing the children from enrolment at the new school without the prior written agreement of the father or order of the Court.

FAMILY LAW – PRACTICE AND PROCEUDRE – Orders that the husband file documents in relation to property adjustment proceedings.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Martin

RESPONDENT:

Mr Buller

INDEPENDENT CHILDREN’S LAWYER:

Joanne Boughton

FILE NUMBER:

BRC

8647

2014

DATE DELIVERED:

8 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

8 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ehlers of Counsel

SOLICITOR FOR THE APPLICANT:

Fox Taylor Mildwaters

THE RESPONDENT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boughton
Boughton Legal

Orders

Parenting

That until further order, the mother shall have sole parental responsibility for the children, B born … 2008 and C born … 2010 (“the children”).
That notwithstanding the conferral of sole parental responsibility for the children upon the mother by paragraph 1 of these Orders, the mother is permitted to remove the children from D School and enrol them at E School so they commence attending at that school at the commencement of the third term of the Queensland State school academic year 2015, and the mother is restrained from removing the children from enrolment and attendance at E School without the prior written agreement of the father or earlier Order of this Court.
The matter be adjourned for mention before Registrar Brooks at a time and on a date to be fixed, of which the parties will be notified in due course.

Financial

That the respondent shall file and serve an Amended Response in which he seeks orders that he asks the Court to make on a final basis in respect to property adjustment as between the parties pursuant to s 79 of the Family Law Act 1975 (Cth) on or before Friday, 24 July 2015.
That the respondent shall file and serve a Financial Statement on or before Friday, 24 July 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Buller 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 BRISBANE

FILE NUMBER: BRC 8647 of 2014

Ms Martin

Applicant

And

Mr Buller

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

These are proceedings in which parenting orders are sought in respect of the two children, B born in 2008, now six going on seven years of age, and C born in 2010, who is now five years of age. Before me for determination today are competing applications for interim parenting orders, most particularly interim parenting orders that seek variation of existing interim parenting orders that currently govern the parenting arrangements in respect of the two children as between their parents, the mother Ms Martin, and the father, Mr Buller. These existing interim parenting orders were made in the Federal Circuit Court on 20 May 2015 by her Honour Judge Spelleken.
On that day, her Honour made interim parenting orders that discharged all previous parenting orders that had been made, that provided for the two children to live with the mother, that totally suspended orders providing for the children to spend any time with the father, leaving them in a current situation where they do not spend any time with him at all, and also that restrained the father from attending at the school that the children attend on a daily basis.
I do not have a copy of the reasons that her Honour Judge Spelleken gave for the making of those orders, although I hasten to say, having heard the applications before me today and read the material - the affidavit evidence that I have been asked to read in the case, including some expert reports – I believe I have a reasonable understanding of the reasons why her Honour made the orders that she did. Not only did her Honour make those orders but she also transferred the proceedings to this Court with a request that the matter be considered for inclusion in the Magellan list.
That happened. On 4 June 2015, the Magellan Registrar, Registrar Brooks, made orders in chambers that designated this matter as Magellan thereby placing it on the Court’s Magellan List, attracting the particular case management that such matters do attract and requesting the Director-General of the Department of Communities, Child Safety and Disability Services to prepare and furnish to the Court a report in accordance with the Magellan model protocols dealing with allegations contained in the Form 4 Notices of Abuse filed on 24 September and 23 October 2014.
The matter then, pursuant to the Magellan protocols, came before me in the Magellan List by way of a mention on 23 June 2015. That was the first involvement that I had as a judge in this particular matter. On that day the mother appeared before me, represented by Mr Ehlers of Counsel, as she does today. The Independent Children's Lawyer appointed pursuant to an order made in the Federal Circuit Court, Ms Boughton, solicitor, also appeared and the father appeared in person.
Relevantly, I must make reference in my reasons to something that happened that day. When the matter was called by me for mention on that day, 23 June 2015, and appearances taken, the father did not appear. From memory, I caused my court officer to telephone him on a mobile telephone number that the Court had in its records as being a number at which the father could be contacted. When asked about his non-appearance in Court, the father informed the Court that he was on his way and was in traffic. I recall losing reception with him once or twice, having to ring him back and then, ultimately, reception being lost for a period of time where after he suddenly appeared in person at the back of the Court.
I remembered having read something in one of the reports about the father referring to the fact that he was often late. I raised with him the obligation on a litigant in proceedings in this Court at least, to attend at court events either in person or with or by legal representation at the time that the matters are listed. I told him quite plainly that failure to do that, particularly if that happens on a regular basis, must be understood by him to reflect poorly upon the person who fails to attend punctually on a regular basis, as it potentially reflects on chaos in that person’s life.
He made it clear to me, I thought at least, that he understood that and would be doing his very best to comply with the obligation that I informed him of. Indeed, I also told him that conscious of my obligations to sit and hear matters as they are listed, and in order to do justice to other parties, not just those in the particular proceedings before the Court but all others who are involved in proceedings in the Court, that it was my practice generally to proceed with matters at the time that they are listed, whether or not the parties appear in person or are represented by lawyers.
I have found it necessary to put in my reasons for judgment this morning the matters I have just referred to because on that day, 23 June 2015, only just two weeks ago, I listed this matter for this interim hearing before me today to deal with matters pertaining to the parenting regime existing between the two parents of these two children that were raised with me on that day as matters that were necessary to deal with as quickly as possible.
I listed the matter for hearing as an interim contested parenting matter for 10.00 am this morning on a day that was otherwise scheduled into my calendar as a judgment writing day and not a judicial duty list day, thus giving the parties in this case differential treatment from many of the parties, such differential treatment determined by me to be necessary having regard to the best interests of the two children in this case, particularly having regard to the fact that the mother’s application that was being foreshadowed was an application to move them from the school that they have been attending to another school, being mindful of the fact that we are in school holidays right at this very point in time and there being a need to determine that application before Term 3 of Queensland Government school year starts next week.
Further, I was conscious of the fact that the time that the children spend with the father has been suspended by Federal Circuit Court Judge Spelleken and I considered that the father as well has the right to be properly served with a written Application in a Case for the change of school and affidavit material supporting that application which was not available on the day that it was last before me and that he might also want to consider his position and perhaps file an Application in a Case himself for this Court to consider the matter of the children’s time with the father.
I made directions in respect of the filing and exchange by way of service of such Applications in a Case and supporting affidavit material. The mother filed an Application in a Case and a supporting affidavit albeit slightly outside the time within which I had directed her to file. To her credit and the credit of the solicitors acting for her, some paragraphs of her affidavit were devoted to an explanation which, prima facie without any evidence to the contrary, explains the reason for her not totally complying with the time limitations that I gave her for the filing of her application and affidavit. Prima facie, I accept the apparent reasonableness of that explanation. Nevertheless, I still urged upon the mother and her solicitors the Court’s requirements for compliance with directions made for the filing of material and I emphasised how important it is for those directions or orders to be followed, particularly in matters as complicated and difficult as this one.
The father was given the right to file an Application in a Case and supporting affidavit in which he set out the orders he sought in response to the mother’s application and any others that he sought. Given the fact that the mother was late in filing and serving hers, unsurprisingly, so too was the father.
Indeed, I was informed by my Associate she had been informed by the Case Coordinator in this particular matter that the father was unsuccessfully trying to file material over the last day or so. This morning, just prior to 10.00 am my Chambers staff brought to me documents filed by the father which at least bear a Court stamp on them. They were filed by the father at 8.33 am this morning, 8 July 2015. Interestingly, the father did not sign the document. The affidavit that he also filed at 8.33 am this morning, 8 July 2015 has no evidence on it that it was sworn or affirmed by the father save that his name is typed in bold on the last page, page 19 of 19.
My Chambers staff also informed me that the father had somehow made contact with the Court saying that he could not come to Court this morning or was running late. My Associate informed me that contact had been made with her indirectly through the Case Coordinator conveying the father’s request to be allowed to appear by telephone.
My Associate informed me that because I was in a Judges’ meeting in the Common Room at the time she was not in a position to interrupt me and ask me for my view on that and simply passed back the message that no such direction or order could be made and left it at that. Just prior to 10.00 am when I returned to my Chambers I was informed of that which I have just put on the record and I came down to hear the matter at 10.00 am as it was listed. When I came in at 10.00 am there was no appearance by the father. Ms Boughton, Mr Ehlers and the mother were in Court at the bar table.
Quite conscious of and particularly having regard to the those things that I said earlier in my reasons that I said to Mr Buller when the matter was last before me on 23 June, I proceeded to hear the matter thinking that Mr Buller might be on his way as occurred on the last occasion and may still turn up. I mentioned in Court that a Response and an affidavit had been received by the Court from Mr Buller. I told those who were in Court that I had not read that yet and I would adjourn briefly to read it with the hope and expectation that in that time the father might appear. When I came back into Court at 10:50 am, having read the material and being conscious of what the father’s position in the matter was, I again noted he was not here and he has not appeared since. Nevertheless, I am quite satisfied that he was aware the matter was on today. I also understood, I said, from at least his written material that he caused to be filed, what his position in respect of (a) the mother’s Application in a Case; and (b) his own case actually is, and I determined to proceed to hear and determine the matter.
The mother’s Application in a Case relevantly asks for the following orders that are not already in existence in Federal Circuit Court Judge Spelleken’s existing orders, namely:
·That she be granted sole parental responsibility for the children on an interim basis; and
·That she be authorised to enrol the children at E School commencing at the commencement of the third term in this school year, 2015.
There were other orders sought in her Application in a Case but as Mr Ehlers properly pointed out to me at the start of his submissions, those orders do not really need to be made because they already are in existence in Federal Circuit Court Judge Spelleken’s orders, namely that the children live with the mother and that the father not be permitted to attend at the children’s school, and also that the children’s time with the father remain suspended.
At the outset of the hearing, Ms Boughton, the Independent Children's Lawyer representing the best interests of these two little children, informed the Court that she was supportive of the Court making orders in terms sought by the mother, namely that she be granted interim sole parental responsibility for the children and be allowed to move them from D School to E School.
The father in his Response to the mother’s Application in a Case seeks a bundle of orders. I will not read them all out entirely. Suffice is to say that he opposes the mother’s application for the children being moved from D School to E School and seeks an order that she be restrained or prevented from removing them from that school. He also seeks:
·an order that the existing order preventing him from attending at the children’s school be discharged, presumably so as to lead to a situation where he can attend and visit the children at the school as he determines at his own discretion;
·an order that the children immediately be returned to the care of the father, which I understand to be that he seeks an order that they live with him;
·an order, if the Court is not determined to make that order, that it make an order that they be allowed to spend a significant amount of time with the father in what he describes as their home but which I would describe as the former matrimonial home that was the family home before separation which the father still resides in;
·a restraining order that the mother not be in possession of a knife or other similar weapon in the presence of the children except whilst in the kitchen;
·a restraining order that the children be prevented from coming into contact with the maternal grandparents;
·orders in respect of being permitted to produce evidence from the proceedings pertaining to the mother and father in the Queensland Magistrates Court for the purpose of denying false allegations made by the mother, an order that I hasten to say at this stage I do not consider needs to be made as the question of whether or not a transcript of the hearing in the Magistrates Court and/or any affidavits sworn or deposed to by either of the parties that were relied upon in those proceedings is able to be adduced in evidence in proceedings in this Court is a matter that can be determined by the judicial officer at the time it is sought to be put into evidence in this Court;
·a further order that the family report writer be required to produce without delay a copy and list of materials that she has been exposed to relating to the case, whether they were provided to the writer or not, whether they were in audio, video, written word or anecdotal or verbal accounts of same;
·a request to be made to the Department of Communities, Child Safety and Disability Services about explaining something to do with the records that they have produced to the Court;
·an order that the family report writer make herself available within 28 days or that a new writer be appointed and the case relisted as soon as possible;
·a further order that the case be able to be relisted at any time on the recommendation of the Department of Communities, Child Safety and Disability Services.
The father filed a rather lengthy affidavit, one that I said already was not sworn, some 19 pages long which I have read entirely. Suffice to say that it contains some matters of opinion and factual assertion that are best described simply as troubling to me.
There was no prior order made by a Judge of the Federal Circuit Court on an interim basis dealing with parental responsibility. Of course on an interim basis orders conferring parental responsibility one way or another are not required to be made. The court makes parenting orders that it considers appropriate having regard of course to the paramountcy of the best interests of the child or children with respect to whom the parenting orders are being made and the matters that are required to be considered that are set out in part VII of the Family Law Act 1975 (Cth) (“Family Law Act”) when determining what is in the child’s best interests and what parenting orders are appropriate. The mother comes to the Court now asking for an order conferring sole parental responsibility upon her.
Section 61B of the Family Law Act tells us what is the meaning of “parental responsibility” insofar as that term is used within the Family Law Act and in the context of how it is to be used in parenting orders that deal with it. It says this:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
It is as simple and as broad as that.
Section 61C then tells us that each parent has parental responsibility as just defined. It states:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
A reading of those two sections of the Family Law Act says, at least in my judgment, that when these two parents separated and from that time until now, at least, each of them retained parental responsibility in respect of these two children. That is, each of them retained all the duties, powers, responsibilities and authority which by law parents have in relation to children, meaning, that each of them either jointly with the other or severally, that is unilaterally and by themselves, could make all of the decisions or any of the decisions that a parent or parents have the power, the duty, the responsibility and the authority by law in relation to children to make.

Of course that clearly means each of them without reference to the other could go off and make a decision about matters pertaining to the health, the education, the naming, the place of residence of the children to the extent that those matters were not already regulated by a parenting order. That is, in my view, always important to remember when questions of the allocation of and conferral of parental responsibility are being considered by this Court.
Section 61D of the Family Law Act tells us that a parenting order made by this Court “confers parental responsibility of a child on a person”, that can be any person, not just a parent, “but only to the extent to which the order confers on the person duties, responsibilities or authority in relation to the child”. Section 61D(2) tells us that:
A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
In this particular case, there is no parenting order in place up to this point in time as I have pointed out. The children have been attending, since they started school, that is, in the boy’s case Prep and Grade 1, and in the girl’s case, Prep since the beginning of this year, at D School. The mother now wants to change their schooling from D School to E School. Given that she has parental responsibility as made clear by s 61C she could do that without an order of the Court but appropriately and to her credit and the credit of those lawyers representing her, she determined it appropriate to ask the Court for the right to be able to do that when she was last before the Court and that has led to this application today.
The father opposes the change and given, as made clear by s 61C, that he also has parental responsibility for the children which he could exercise unilaterally, he is entitled to say “no I don’t want them to change school” and to insist upon that, the way things currently stand.
Where would that leave the children if the issue is not dealt with either specifically, in respect of the determination by the Court of the issue of whether they move from school to school, or more particularly, in respect of a determination of the conferral of parental responsibility, either more generally or more particularly, upon one or both the parents?
It is clear to me that the circumstances require the determination of (a) the mother’s application and the father’s response in respect of the school that the children attend; and more generally, (b) the question of the allocation and conferral of parental responsibility as between these parents for these two children on an interim basis until the matter can be further examined and determined after a trial of what appears to be a very complicated and difficult set of factual circumstances pertaining to the lives of these two children and their parenting needs.
How does one determine the question of the allocation of parental responsibility when making parenting orders? Section 61DA of the Family Law Act tells us how that is done. It says in sub-section (1):
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Before I go on with what is in the rest of that section, that takes me straight across to what that would mean if I applied that presumption and if I made an order that conferred parental responsibility upon these parents equally. Section 65DAC would come into play. It says:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
“Major long-term issues” are defined in s 4 of the Family Law Act as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)      the child’s education (both current and future); and
(b)      the child’s religious and cultural upbringing; and
(c)      the child’s health; and
(d)      the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Clearly, a decision to move a child from a school to another school is “a major long-term issue” in respect of that child having regard to that definition.
Section 65DAC(2) says that where two or more persons share parental responsibility and they have to make a decision like that, then they are required to make that decision jointly, after, according to s 65DAC(3), they have consulted with each other about the decision that is about to be made and they have made a genuine effort to come to a joint decision about that issue.
Accordingly, if there was an equal shared parental responsibility order in place the mother could not move the children from D School to E School without having made a genuine effort with the father to jointly arrive at a decision about that. The default position is that the decision does not get made as the person who wants it made proposes, if the other party does not agree. The parent who wants it to happen is then required to seek an order from the Court to give effect to that decision that they want to see made if it is opposed and not made jointly with them by the other party.
That raises questions then about the determination of, ultimately, whether on the facts of a particular case the presumption in favour of equal shared parental responsibility is displaced by findings that in a particular case it would not be in the best interests of children to order that their parents have to share parental responsibility thus obliging them to make a genuine effort to jointly arrive at a decision.
As I have said many times in decisions that I have made in this Court since my appointment, given the particular complexity and difficulty and generally high conflict circumstances that surround the cases that Judges in this Court deal with in contested parenting proceedings on a day to day basis, it is very often difficult to be persuaded to the view that it is in the child’s best interests for their parents to be put in circumstances where by law they are required to come into communication with each other and actually try to agree about important decisions to be made.
On the material that I have seen in this case so far, this is yet another one of those sorts of cases where the presumption in favour of equal shared parental responsibility appears, at least in my judgment, to be displaced by the factual circumstances that lead me to a finding that it would not be in the two children’s best interests to put in place a situation where both parents were required by law to have to communicate with each other, make genuine effort to make important decisions that pertain to the children and actually agree with each other before those decisions are made. Those same factual circumstances persuade me readily to the view that it would not be in the children’s bests interest to leave the situation being where no parental responsibility order is made such that each of them singularly retains parental responsibility in such a way where they could lawfully act unilaterally without reference to the other, when making decisions about their children.
Sections 61DA(2), (3) and (4) say more about the issue of determining parental responsibility. Section 61DA(2) tells us that the presumption in favour of equal shared parental responsibility does not apply in circumstances where there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child, or family violence. Section 61DA(3) tells us that when a court is making an interim order, such as I am being asked to make today, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order. Section 61DA(4) says that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I have already indicated my view that in this case the factual circumstances satisfy me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for the reasons I have already given and therefore, clearly, I am satisfied that the presumption in favour of an equal shared parental responsibility order is rebutted by those matters alone. I am equally satisfied that the statutory provision for the presumption not to apply in circumstances where there has been family violence, is immediately at hand in this particular case.
As Mr Ehlers has pointed out to me, the mother was the recipient, as an aggrieved person, of a family violence protection order made by a magistrate in the Magistrates Court at H Town in 2014 with the father being the respondent spouse at whom the family violence protection order was directed. I was informed that the application was made on the mother’s behalf by Queensland Police at a time around when the parties were separating or had separated. I was also informed that the father contested the application, that a hearing took place and that the order was made after that contested hearing. Thereby, I can be satisfied that the magistrate who made the order was indeed satisfied, as statutorily required, that family violence or domestic violence as it is sometimes called, had taken place as between these two parties. Whether that is denied or not by the father, the findings stand, the order was made, family violence has occurred between these parties and therefore the presumption that equal shared parental responsibility is in the best interests of the children, is rebutted on that ground alone.
Particularly having regard to the fact that I do not consider it in the children’s best interests to leave the matter without one and only one of the parents having ongoing parental responsibility, I am satisfied that a sole parental responsibility order should be made. In circumstances where I am also satisfied that the children should continue to live pursuant to Federal Circuit Court Judge Spelleken’s orders with the mother, clearly it is the mother who I am satisfied should have sole parental responsibility conferred upon her.
There is evidence before the Court that there are some concerns, particularly raised by the father, but also other concerns raised in the material including in the expert report of the psychiatrist Dr F and the Family Report of Ms G, and the Magellan Report from the Department, about the mother’s parenting. There is serious dispute between the father and the mother about many factual issues that if determined ultimately in accordance with the way the father asserts they happened, would reflect poorly on the mother’s parenting capacities. Of course though, the opposite could be said if they are determined in the way that the mother asserts. Notwithstanding that, it appears on the face of the material that even on the mother’s case there has been some cause for concern about her parenting capacities in recent times.
Concerning as this material may be, the Court can be satisfied of a number of things at this point. The Department of Communities, Child Safety and Disability Services have been engaged with this family and have determined, it seems, not to intervene insofar as either these proceedings are concerned or by bringing their own child protection proceedings in the Children’s Court in respect of the children, even knowing that they are living with the mother now and subject to an order that they not spend any time with the father. Both police and child protection officers have been involved in investigations into allegations, complaints, and notifications that have been made in respect of this family and particularly these two children and the parenting of them.
The Independent Children's Lawyer has engaged an experienced family report writer and psychologist, Ms G, who as I understand from memory was previously a family consultant in this Court, an expert who has from my understanding quite a deal of experience in working with families such as this one. A report was obtained by Ms Boughton from her and it was her recommendation that the children live with the mother and not spend any time with the father, supported by Ms Boughton in her submissions before Federal Circuit Court Judge Spelleken, that ultimately, I presume, principally led Federal Circuit Court Judge Spelleken to make the orders that she did.
I asked Ms Boughton if she was satisfied in respect of the mother’s parenting capacities to the extent of not opposing an order for the mother to have sole parental responsibility or indeed supporting an order that the mother have sole parental responsibility. I was informed that on the evidence she agreed with that and would not make submissions other than supportive of the mother being granted sole parental responsibility on an interim basis.
Accordingly, I am quite satisfied that it is in the best interests of the two children that such an order be made. That, of course, gives the mother sole parental responsibility in respect of the major long term issues such as those that I read out - health, education etc, and necessarily it follows I do not have to specifically make an order that permits her to move the children from D School to E School, because granting her sole parental responsibility would give her that right. However, in the particular circumstances, I consider it appropriate to deal with that issue more specifically and to actually make an order in respect of that.
The mother moved from the former matrimonial home which is in D School. She has been able to secure accommodation for herself and the two children now that they are specifically living in her full time care in the neighbouring town of E School. I understand that she rents accommodation there and is living there with a friend. She deposes to the fact that E School is now only approximately three kilometres or a five minute drive from her home. She says that in order to take the children from their home to D School she has to travel 50 kilometres in the morning and 50 kilometres in the afternoon, meaning she has to travel 100 kilometres a day or 500 kilometres a week to take them to and from school. I understand by that that it must be a trip of 25 kilometres or thereabouts from her home to the school, which means the children only have to travel 25 kilometres there and 25 kilometres back in the afternoon, 50 kilometres a day or 250 kilometres a week, but the mother is required to do the round trip each time thus being the 100 kilometres a day and 500 kilometres a week.
The mother has recently given birth to another child, her third child, who is the child of her current partner and not the father in this case. She deposes to the fact that that baby is a terrible sleeper, does not sleep through the night. I have no reason not to accept that. For many nights or most nights she is awake for hours with that child and is woken numerous times throughout the night and so, therefore, has little sleep. She says she worries about the effect of her lack of sleep has on her ability to drive.
The fact that she has to drive 500 kilometres a week in order to take the children to and from the school that they are attending in itself creates a burden on the mother whose financial circumstances can only be described as presumably strained. She is on Legal Aid, she is in receipt of Centrelink benefits and as I understood from what I heard in June when I heard the matter, the parties only have some limited amount of equity in the former matrimonial home as an asset and the mother does not have access to that at the moment.
Such travel requirements would also place upon her the obligation of having a well serviced vehicle so that she does not break down on the way and I am unsure about any evidence about that. The risk of her falling asleep either on the drive to or from school in the morning or the afternoon is one that is also one that cannot be treated lightly when she has two little children and perhaps even a newborn baby in the car with her on times for those journeys.
As I indicated in exchange with the bar when I was hearing submissions in the matter, regular and frequent changes in children’s schooling coupled with turmoil in their lives surrounding the separation of their parents and the breakdown of their family unit, cannot be regarded as a good thing in a child’s life and is best to be avoided where it can be, where all other circumstances suggest that it does not need to happen. However, at the same time I acknowledge that young children, especially only in their second year of formal education or indeed in their first year of formal education, a time when they are learning to socialise and form friendships are generally fairly resilient when it comes to how they handle changes in their environment such as change to their schooling.
However, having said that, I still consider it necessary where possible to minimise the number of such changes for a child when they are going through other turmoil in their lives. In this particular case, I am satisfied that it is in their best interests to allow their mother to move them from D School to E School and I consider it appropriate to make an order that allows her to do that but to include in that order a restriction on her moving them from E School in the future without agreement with the father or further order of this Court. The mother indicated through her counsel that she would be quite prepared for such an Order to be made as she currently has no intention whatsoever to seek to move the children from E School in the foreseeable future. That is what I intend to do.
That deals with the mother’s application.
Although the father has not appeared and made oral submissions, as I have said, I am satisfied that I understand his case from the material he filed. He clearly wants an order that the children be returned to live with him. In the alternative he wants an order that they start spending significant time with him. That is opposed by the mother. More significantly, from the point of view of this being an interim hearing, it is strongly opposed by the Independent Children's Lawyer.
Having read Ms G’s family report and seeing the matters that concerned her, and the recommendations that she made, having read the Magellan Report, having read Dr F’s psychiatric report and having regard to the evidence that has been filed by the mother, but even more particularly being filed by the father today, I am not persuaded at this interim hearing where cross-examination does not take place, where I am not able to make findings about seriously contested matters, that the children’s best interests at this point in time would be served by returning them to the care of their father or by lifting the suspension on them spending time with their father that Federal Circuit Court Judge Spelleken imposed.
The current situation is that Ms Boughton, the Independent Children's Lawyer, has arranged for Ms G to see the family again, and for the parties, or at least the father, to be further assessed by Dr F, psychiatrist, and for both of those experts to provide updated written reports. I accept that that is necessary to happen, particularly given that Ms G was, not through any fault of her own but because of circumstances presented to her unilaterally by the father, unable to observe the children with the mother or with the father in any meaningful way or to speak at all with the children by themselves.

The matters deposed to by the father in his evidence raised of course his legitimate concerns about the reporting process, about the mother, about the Magellan Report and other related matters. But one gets, from where I sit, an almost uncensored view of a litigant or the deponent of an affidavit when the deponent of the affidavit or the litigant who is a party in the case themselves has drawn that affidavit up themselves without any assistance by a legally qualified, experienced, competent family lawyer.
There is some material in the father’s own affidavit that troubles me. I will not particularly refer to it, suffice to say I have read all the affidavit material that he filed this morning. I acknowledge, having read Dr F’s report, Dr F refers to the fact that the father suffers from some mental health issues that impact upon the way in which he expresses himself in social situations in such a way that reflects his disinhibited character. Certainly, some of the things he has said in his affidavit this morning reflect that disinhibited characteristic. Some of the things he has said in his affidavit would in my view, in my judgment at least, never have seen the light of day in his affidavit if he was represented by a solicitor. They reflect more poorly upon him, with respect to him, than they do upon any other person that he says those things about. Indeed, some of the things that he says, such as, for example, purporting to be a proud father due to certain conduct of his young son at the school, were quite concerning.
I am simply not persuaded that prior to at least the further reports of Dr F and Ms G being made available for the Independent Children's Lawyer’s assistance, the parties’ assistance and the Court’s assistance if necessary, that any orders should be made lifting the suspension that Federal Circuit Court Judge Spelleken put in place and I will not. I will not be making any order today that the children spend time with the father. Similarly, I do not intend to make any of the other orders that the father seeks.
I do not intend to remove the restraining order on him attending the school in the circumstances where there is an order suspending the time the children spend with him. He should not be attending at the school they attend. Indeed, given that they will be going to a new school from next week, there is no more reason the father not being known essentially to that school that the restraining order preventing him from attending at their school should stay in place on an interim basis in the best interests of these children.
I do not intend to make an order that the family report writer be required to produce without delay a copy of the lists that the father seeks. Suffice to say that I have from the bench today asked Ms Boughton to request the family report writer to maintain the practice that she has done in her existing report to list the materials that she has had the benefit of access to and consideration of in the preparation of her report and I would expect I would see such list in the next report without the need for an order.
Without the father being here to actually argue that the children be prevented from coming into contact with the maternal grandparents and noting the mother’s deposed intention or lack of intention to bring the children into contact with her father at the moment, I do not consider that there is a need at this point in time for the mother to be restrained from bringing the children into contact with her parents. The Independent Children's Lawyer does not seek such an order. I do not intend to make it but again I note that the mother has said she has no intention of bringing the children into contact with her father and expect that she will honour that position until the matter is further aired in any event.
I will not make any order as sought by the father in respect of the mother using a knife. I am not persuaded that such is necessary.
I will not make the order that he seeks with respect to the family report writer making herself available. That is a matter as between the Independent Children's Lawyer and the family report writer to make herself available for the updated report as soon as circumstances justify that and as soon as practicable with a view to moving the case forward.
I do not consider it necessary at all to make the order that the case be relisted at any time on the recommendation of the Department. The father may not know, but the Director-General of the Department has a right, one that I cannot even revoke or refuse, to come to this Court and seek to intervene in the proceedings at any time that he/she determines he/she considers it appropriate. That can be done by the filing of an Application in a Case and that can happen at any time. Realistically, the circumstances that the father seeks to put in place there by order already exist by law. He ought be comforted by that and of course I refuse to make such an order. I do not consider it necessary to make it.
For all of those reasons that I have just given, I make these orders. I thank the legal representatives that are present in Court for their patience in my delivery of these ex temporaneous reasons.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 July 2015.

Associate:

Date: 21 July 2015

[2015] FamCA 565

8 July 2015

Key Legal Topics

Areas of Law

Family Law