Matthews& Norris (No 2)

[2017] FamCA 103

FAMILY COURT OF AUSTRALIA

MATTHEWS& NORRIS (NO 2) [2017] FamCA 103

FAMILY LAW – INTERLOCUTORY – With whom the child should live – Where the father seeks reversal of residence – Where the as yet untested evidence of the Family Consultant tends to confirm the child’s relationship with the father will wane, or worse still, be extinguished if the child remains in the mother’s primary care – Where the mother’s parenting capacity is impaired – Concluded the mother is intent on precluding the child’s interaction with the father and is refusing to comply with orders made with her consent – Where the mother would not commit to future compliance with orders – Ordered the child live with the father

FAMILY LAW – INTELOCUTORY – Parental responsibility – Where the parties agreed to accept equal shared parental responsibility for the child in January 2016 – Where they have proven they are unable to exercise equal shared parental responsibility – Ordered the father have sole parental responsibility for the child

FAMILY LAW – INTERLOCUTORY – Supervised time – Where the mother abducted and hid with the child – Where a recovery order was issued to ensure the mother’s compliance with previous consent orders – Where the mother would not commit to compliance with future orders – Ordered the child spend supervised time with the mother

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 68B, 97, 102Q

Banks & Banks (2015) FamCAFC 36
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 20 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 20 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The Response to an Application in a Case filed on 17 February 2017 is dismissed.

2. Leave is granted for the mother to rely on both of the following affidavits at today’s interim hearing:

   a.The affidavit sworn 11 February 2017 and filed 17 February 2017; and

   b.The affidavit sworn and filed on 19 February 2017.

1. Order 7 made on 22 December 2016 is discharged and the substantive proceedings are instead re-listed before the Court for further procedural directions at 9.30am on Thursday, 16 March 2017.

1. Pursuant to s 62G of the Family Law Act, the Family Consultant shall prepare and furnish to the Court an update family report concerning the child of the parties touching upon those matters of relevance to the care, welfare, and development of the child.

2. In order to facilitate preparation of the update family report:

   a.Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

   b.Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

   c.The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. All former orders made in respect of the child B, born … 2010 (“the child”) under Part VII of the Family Law Act are discharged.

2. The father shall have sole parental responsibility for the child.

1. The child shall live with the father.

2. The parties shall take all reasonable steps to ensure that the child spends supervised time with the mother for 2 hours once per week.

3. For the purpose of implementing the preceding order:

   a.The supervisor of the time spent by the child with the father shall be staff at “K Contact Service”, or such other contact centre as agreed between the parties;

   b.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   c.The time that is to be spent by the child with the mother shall commence at the time designated by the supervisor;

   d.The venue at which the time is to be spent by the child with the mother shall be designated by the supervisor;

   e.The parties shall pay in equal shares any costs due to the supervisor;

   f.The father shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the mother;

   g.The mother and father shall comply with all reasonable requests and directions of the supervisor; and

   h.Leave is granted to the parties and the Independent Children’s Lawyer to provide to the supervisor a sealed copy of these orders.

1. If the mother fails to attend two consecutive visits with the child pursuant to these orders, the time to be spent by the child with the mother shall be suspended.

1. Pursuant to s 68B of the Family Law Act the mother is restrained from entering upon or approaching within 100 metres of:

   a.The father’s residence; and

   b.Any school attended by the child.

1. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with the mother at 6pm each Wednesday and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

2. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of B, born … 2010, from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 6 months.

3. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. Otherwise:

   a.The Application in a Case filed on 14 February 2017 is dismissed;

   b.The Response to an Application in a Case e-filed on 20 February 2017 is dismissed; and

   c.Any and all other outstanding applications for interim orders are dismissed.

2. By consent, the parties’ costs of and incidental to today’s interim hearing are reserved until final trial of the parenting proceedings.

NOTATIONS

A.The parties and Independent Children’s Lawyer are in agreement that:

i.The family report be updated by the Family Consultant which will be facilitated by further appointments with the Family Consultant on or about 18 April 2017;

ii.At the next Court event on 16 March 2017, the parties respective applications under Part VII of the Family Law Act can be severed from their respective applications under Part VIII of the Family Law Act; and

iii.The parenting dispute under Part VII of the Family Law Act can be listed for trial commencing on Monday, 3 July 2017.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 2226 of 2015

Mr Matthews

Applicant

And

Ms Norris

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE

REASONS FOR JUDGMENT

1. The child who is the subject of these proceedings is the six year old of the applicant father and respondent mother. 

2. The mother withheld her from the father from Boxing Day and went into hiding with her. The mother’s conduct placed her in clear breach of existing parenting orders, which were made with her consent, requiring the parties to have equal shared parental responsibility for the child and for the child to spend three days each week in the father’s care. The mother has given no satisfactory reason for her stout refusal to comply with the orders.

3. Regardless, in the face of her refusal to unconditionally comply with parenting orders, the father now seeks orders reversing the child’s residence, which application is opposed by the mother.

Recent history

1. The father commenced these proceedings in the Federal Circuit Court in August 2015, but the proceedings were transferred to this Court in December 2015. 

2. In January 2016, interim parenting orders were made with the parties’ consent.  They were given equal shared parental responsibility for the child, the child was to live with the mother, and the child was to spend substantial and significant time with the father (amounting to three days each week, half of all school holidays and other special occasions). 

3. An apprehended violence order was then in existence between the parties but, when they invited the Court to make the interim orders, it was expressly noted the orders would be inconsistent with the apprehended violence order and would prevail to the extent of the inconsistency. 

4. In March 2016, the orders were amended under the slip rule to cure some grammatical errors. 

5. In June 2016, the father filed an Application-Contravention alleging the mother withheld the child from him and so, in July 2016, some further orders were made, again with the parties’ consent. Those orders were injunctions grafted onto the orders made in January 2016, restraining the father from allowing the child to stay overnight at a specified address and from allowing the child to be in the physical presence of another child, who is the adolescent son of the father’s current partner.

6. On 9 December 2016, Cleary J dismissed the mother’s interim application to relocate with the child to New Zealand. Her Honour also dismissed the father’s interim application to reverse the child’s residence. Ex tempore reasons were given and the mother has appealed that decision.

7. On 22 December 2016, I dismissed another interim application made by the mother seeking permission for her relocation with the child to New Zealand.  Orders were made restraining the parties from removing the child from Australia and two of the orders made in January 2016, which allowed the child’s conditional international travel, were discharged. Ex tempore orders were given and the mother has also appealed that decision.

8. In accordance with the orders made in January 2016, the father delivered the child to the mother on Christmas Day, expecting her to be returned to him the following day so she could spend the remainder of the first half of the summer holidays in his care.  He did not see her again until Friday, 17 February 2017.

9. On 6 February 2017, I heard further interim applications brought by the parties.  The father sought a recovery order to ensure the child began spending time with him in accordance with the orders made in January 2016. The mother sought a variety of orders, but most importantly she renewed her application for an order permitting her to relocate with the child to New Zealand. The mother’s application was dismissed and the recovery order was made. Ex tempore reasons were given, but the mother did not remain in Court to hear them. No appeal has yet been filed against those orders.

10. The mother failed to present herself and the child at their appointments with the Family Consultant on 14 February 2017, thereby breaching another procedural order made on 24 November 2016. The mother engaged in a telephone conversation with the Family Consultant, but the Family Consultant was unable to speak with the child or observe her in the company of the father. 

11. The mother took the child to school last Friday (17 February 2017). The school staff notified the police and, without the necessity of further police intervention, the father was invited to attend the school at about 1.00 pm to collect the child and she has been in his care since then. 

Proposals and evidence

1. The father moves on his Application in a Case filed on 14 February 2017 and in support thereof relies on his affidavit filed on the same date, together with the Family Report prepared on 15 February 2017. 

2. In essence, because the child has now been restored to his care, he now only seeks

   (a)discharge of the former interim orders made in January and July 2016; and

   (b)fresh interim parenting orders providing for him to have sole parental responsibility for the child, for the child to live with him, and for the child to only see the mother under professional supervision.

3. The mother appeared at Court today. She acknowledged her receipt of the father’s process by email last Wednesday 15 February 2017. On Friday 17 February 2017, she filed a Response to an Application in a Case and a supporting affidavit. Then, on Sunday 19 February 2017, she filed another Response to an Application in a Case and another affidavit. She confirmed today she moved on the second Response, which superseded the first Response, and so it was dismissed. With the consent of the father and the Independent Children's Lawyer, leave was granted to the mother to reply upon both of her affidavits at today’s hearing.

4. In essence, the mother sought:

   (a)interim orders permitting her to relocate with the child to New Zealand, which would have the effect of subverting existing interim orders enabling the child to spend substantial amounts of time with the father; 

   (b)a non-denigration order binding both the father and his partner; 

   (c)an injunction restraining the father’s partner from attending Court, other than in the capacity as a witness; 

   (d)an order against the father under s 102Q of the Family Law Act 1975 (Cth) (“the Act”);

   (e)the father’s payment of spousal maintenance to her; and

   (f)the stay of child support payments by her. 

5. Some parts of the mother’s application became superfluous because the parties and Independent Children's Lawyer agreed the final trial of the parenting applications should be expedited and the Family Report updated as soon as possible. Procedural orders were therefore made to achieve that outcome.

Parenting law

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be rendered inapplicable or rebutted by the evidence. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Procedural considerations

1. The procedure for conducting an interim hearing has been authoritatively established by the Full Court.  In Goode & Goode (2006) FLC 93-286, the Full Court said:

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. 

2. In Banks & Banks (2015) FamCAFC 36 at [47]-[50], the Full Court noted that a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.

Section 60CC(2)(a)

1. The father concedes the child has a meaningful relationship with the mother, but his fear is that her relationship with the mother comes at the expense of her relationship with him. 

2. The Family Consultant reported as follows:

   [113]:  Although I was not able to interview/observe [the child] on this occasion, the information from … supported that [the child] had a positive relationship with both of her parents as at March 2016.  Currently [the child] has not spent time with her father since 25 December 2016, and there is likely to be an increasingly negative impact on [the child’s] relationship with her father if she continues to spend no time with him for the foreseeable future.  Any negative impact is likely to be heightened if the mother is providing [the child] with negative information about her father in his absence.

   [118]:  I am also concerned as to the mother’s extreme self-focus as is evident in her unambiguously stated intent to sever all contact and communication with [the child] if she lives with her father which is likely to have a significant deleterious impact on [the child].  That is, the mother is prioritising her own mental health and wellbeing over that of her daughter.

   [121]:  On consideration of the available information, I am of the view that if [the child] remains living with her mother, her relationship with her father will be at best difficult, and at worst non-existent …

   [122]:  Whilst there are identified limitations in both households, overall I am of the clear view that the father is the parent who is most able to facilitate the relationship between [the child] and both of her parents.

   [125]:  If the Court finds that [the child] is not at unacceptable risk of harm in the care of the father, it is recommended that [the child] live with him.

3. Though as yet untested, that evidence importantly suggests the child’s meaningful relationship with the father will wane, or worse still, be extinguished if the child remains in the primary care of the mother.

Section 60CC(2)(b)

1. The mother’s allegations about the child’s safety while in the father’s care have been inconsistent and, even when made, lacked cogency. 

2. In January 2016, the mother consented to the child spending substantial amounts of unsupervised time with the father. The mother recently asserted she was tricked into consenting to those orders and that she only agreed to them under duress, but such allegations are easy to make and hard to prove. She told the Family Consultant in the past that her only error was agreeing to those orders in the mistaken belief they provided for the child to spend three days with the father each fortnight, instead of each week. Even if that is so, she still intended the child to spend unsupervised time in the father’s care and, further, she intended that to occur regardless of the parties’ history of conflict. Such an attitude was irreconcilable with her more recent assertion that she did not want the child to spend any time at all with the father and her consent was extracted from her under duress. 

3. More recently, in an email dated 13 February 2017, the mother told the Family Consultant the Court was “failing to protect [her] and [the child] from the repeated family violence”, but the substance of that allegation remains a mystery, given her recent contradictory admissions. For example:

   (a)She admitted to the Family Consultant she sent an email to the father’s solicitors only a week beforehand saying she would return the child to the father’s care, provided he gave an undertaking to not allow the child any contact with his new partner and to reveal his new partner’s current residential address;

   (b)In September 2016, the mother’s former solicitors wrote to the Independent Children’s Lawyer and the father’s solicitors advising, first, the mother resiled from her former allegation of the child’s sexual molestation by the father’s partner’s teenage son whilst in the father’s care, and secondly, indicated her willingness to discharge the injunctions made in response to that allegation in July 2016; and

   (c)In October 2016, the mother wrote to the father telling him her real concern was disruption to the child’s routine because of the number of times the child was exchanged between them under the existing orders, at which time she made no mention of the child’s safety from abuse or family violence being any concern to her.

4. Today, the mother asserted in submissions the child was being “emotionally abused” by the father’s partner, but that was a bald proposition without any sound evidentiary basis. 

5. There is no proper basis upon which to conclude the child is at any tangible risk of harm from abuse or exposure to family violence while in the father’s care. If the mother genuinely holds fears to that effect, they lack an objective foundation.

Section 60CC(3)

1. The issue of greatest prominence appears to be the mother’s parenting capacity.  It seems to be impaired, but the reason for impairment is open to debate at the moment. 

2. The father and the Family Consultant presently believe her impairment may be due to psychological ill health. 

3. In February 2011, the mother’s peri-natal psychiatrist wrote to her general practitioner reporting her “history of significant mood swings” and her inpatient treatment for depression in her early twenties, at which time she was diagnosed with “Bipolar II disorder” and treated with lithium. The psychiatrist did not rule out such diagnosis in February 2011. 

4. At a preliminary meeting with the Family Consultant in March 2016, both parties alleged the other was “mentally unwell” and posed a “high risk of murdering [the child] as a form of vengeance/revenge”. 

5. In April 2016, the mother was referred to mental health services following her presentation at a local hospital. She was given a medical certificate and prescribed medication. At the time, she admitted her suicidal ideation. She did not follow up on her referral to a psychiatrist. 

6. In October 2016, the mother’s psychologist tested her and found her to have an “extremely severe” score on the depression scale and a “severe” score on the anxiety scale. 

7. In an affidavit filed in December 2016, the mother admitted her “mental health has deteriorated”. She attributed the deterioration in her mental health to the father’s conduct and an absence of family support in Australia, which may or may not be correct. Significantly, she realised her psychological state was compromised. 

8. When conferring with the Family Consultant over the telephone on 14 February 2017, the mother conceded she was currently on a “truckload” of medication. 

9. Ultimately, the Family Consultant reported:

   [117]  I hold some continuing concerns as to the mother’s mental health.  This is on the basis of personality vulnerabilities, what appears to be a history of decompensation under stress and also on her own Affidavit material which indicates that she is experiencing extremely severe depression, severe anxiety, possible post-traumatic stress disorder and possible dissociation.  The latter is particularly relevant as it appears from [Dr D’s] report that the mother’s mental health may be associated with false allegations having been made in relation to sexual harm of (the child).

10. Even if the mother’s emotional instability is not the explanation, there can be no doubt her parenting capacity is currently impaired. She is intent on precluding the child’s interaction with the father, for which she offers no rational and consistent reason, and she belligerently refuses to comply with orders that were made with her consent. Today, when squarely asked if she would unconditionally implement orders allowing the child to spend unsupervised time with the father, she would not commit. She asserted the father has a “mental problem”. She also said she was “concerned” about the child being with the father. She also said that, if the father refuses to disclose the residential address of his partner, she would abandon the child to him and immediately leave for New Zealand.

11. There can be little doubt those sentiments accurately reflect the mother’s current thinking. Only last week, when she conferred with the Family Consultant over the telephone, she told the Family Consultant:

    She and (her partner) would be permanently relocating to New Zealand regardless of the outcome of these proceedings.  She said that she would be relocating to New Zealand prior to the birth of her unborn child as she wanted to get settled and for the child to be born in New Zealand.

12. The Family Consultant attributed these words to the mother:

    There is no way I am staying here in Australia.  If I have to say goodbye to her, (the child), then that’s what I have to do.

13. The mother sent an email to the Family Consultant only the day before saying much the same thing. In that email she said:

    Despite the discrimination, the Family Court are also failing to protect myself and (the child) from the repeated family violence.  I am extremely fearful of what (the father) might do next … If the Full Court determine that they will risk (the child) becoming another statistic, then I will be left with no choice but to return home to New Zealand without my gorgeous and much-loved daughter.  As much as the thought of leaving (the child) behind really cuts me, it is time I look after myself and that of my unborn child.

14. It does not seem to be a rational response for a parent to abduct and hide with a child, but simultaneously profess willingness to cut ties with the child if the child is taken from her. 

15. The mother’s psychological stability is objectively concerning, since in the affidavit she filed yesterday she:

    (a)Described the father as an “abusive, lying, thieving applicant husband”;

    (b)Described herself as a “battered victim, domestic violence survivor”;  and

    (c)Repeatedly made various complaints about the impartiality and probity of myself, the Registrar, the Family Consultant, another administrative staff member of the Court, and the father’s solicitor.

16. The mother’s allegations in that regard were illogical and florid – perhaps even paranoid. In any event, she did not make any application for me to disqualify myself. She only put myself, the Court and the father’s solicitor “on notice” that she might ultimately make disqualification applications. 

17. The recent history plainly demonstrates the child has been living in unstable conditions. She has been living in hiding with the mother, precluded from interaction with the father, and, until last Friday, apparently not attending any school.

Conclusions

1. In January 2016, the parties agreed to accept equal shared parental responsibility for the child. The last 12 months have proven they are unable to exercise shared parental responsibility in the manner the law requires (s 65DAC). 

2. I earlier referred to the presumption of equal shared parental responsibility imported by the Act (s 61DA). Section 61DA(3) provides that, when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers it would not be appropriate for it to do so in the circumstances. I am satisfied, given the current circumstances, it is not appropriate to apply the presumption of equal shared parental responsibility. For the time being, at least, parental responsibility should be vested exclusively in one party and that should be the party with whom the child will live.

3. The child should now live with the father. At least then she will be able to enjoy her meaningful relationships with both parents. Presently, the mother seems intent on destroying the child’s relationship with the father unless orders are made in the image of her demands. The evidence does not establish that the child is at any tangible risk of harm in the father’s care.

4. The child should only spend time with the mother under professional supervision at a contact centre, to prevent her abduction again. The Independent Children’s Lawyer supported that proposal in the absence of the mother’s unequivocal commitment to compliance with Court orders, which commitment was not forthcoming.

5. The mother threatened her intention to move to New Zealand without the child. The orders are therefore conditioned that the child’s expenditure of time with the mother each week will be suspended if she fails to attend two consecutive visits. It would not be in the child’s best interests to be repeatedly taken by the father to the supervisor, in expectation of her visit with the mother, only to be repeatedly disappointed by her failure to appear. The child would likely be emotionally harmed by the inference the mother had lost interest in her.

6. The mother will be restrained from attending at or near to the father’s home and the child’s school to avoid usurpation of the orders I have foreshadowed. 

7. An order will be made preventing the child’s removal from Australia and her name will remain on the airport watch list. No good reason was advanced by the mother for her interlocutory relocation with the child to New Zealand. The mother made the same application and it was successively dismissed with reasons on 9 December 2016, 22 December 2016, and 6 February 2017.

8. An order will be made enabling the child to have telephone communication with the mother once per week. The father was willing to facilitate such communication and it is evident that, even since last Friday, he has not obstructed electronic communication between the child and the mother. The mother tendered a series of text messages that transpired between herself and the child on Saturday 18 February 2017 (Exhibit M1). Once per week should be sufficient, as that would ensure their contact (both face-to-face and telephonically) occurs twice per week. There is a countervailing consideration of the need to reduce opportunities for the parties’ conflict.

9. The mother sought that non-denigration orders be made in these proceedings and an order to that effect will be made. The mother proposed that such an order extend to cover the father’s partner, but the Court has no power to make an order that binds a third person who is not a party to these proceedings. The injunction about denigration will therefore apply to the parties. 

10. The mother made a further application for an order restraining the father’s partner from attending the Court, unless she was being called as a witness, but I decline to make such an order. The Act (s 97) provides that proceedings are to be heard in open court unless good reason is given for a contrary order. None of the evidence advanced by the mother in her two affidavits forms the foundation for such an order, and the mother did not address the need for such order in her submissions.

Miscellaneous Orders

1. The mother again applied for an order compelling the father’s payment to her of spousal maintenance in the sum of $1500 per week.  

2. In her second affidavit, the mother deposed:

   Despite previously filing a financial statement with the Court, as well as a detailed expenditure on joint assets/matrimonial property.  Judge Austin refused to address my application for spousal maintenance on 7 February 2017.  The financial statement was filed on 9 November 2015.  Details of expenditure was in my application in a case filed 18 October 2016.  Attached at annexure B is a true copy the filed financial statement.  This probably needs updating as it is very old and it doesn’t include the correct school fees, child support paid, mortgages, nor the holiday expenses.  The application in a case filed 18 October 2016 is too large to attach and I refer the judge to it. 

3. If the mother believes that is sufficient evidence upon which to ground her spousal maintenance application, she is misconceived. 

4. An order was made by me on 6 February (not 7 February) 2017, dismissing her spousal maintenance application because there was no evidence before the Court that day to warrant such an order. Today, even though the mother adduced the abovementioned evidence, she made no submission in relation to spousal maintenance. Even if the mother believes she has a need for spousal maintenance, she has not proven the quantum of her need or the father’s capacity to pay any maintenance. The mother’s spousal maintenance application was dismissed on 6 February 2017 and no evidence adduced or submission made today warrants any different outcome. The application for spousal maintenance is dismissed. 

5. The mother made another application in the following terms:

   That leave for a stay order be put in place for all child support payments paid by the mother to the father since March 2016.  This stay order to be enforced until the final hearing.

6. The mother made no submission directed to that proposed order and, so far as I can ascertain, no evidence was adduced by her which would found such an order. I am bereft of any knowledge about what child support payments have been made by the mother and whether they are pursuant to a child support agreement or a child support assessment. I am not satisfied that such an order can, or should, be made and it will be dismissed. 

7. Finally, the mother sought an order against the father pursuant to s 102Q of the Act prohibiting him from instituting further proceedings. Suffice to say, none of the evidence adduced by the mother addresses the need for such an order and the mother made no submission in support of it. There does not appear to be any proper basis for such an order to be made against the father. Although there has been a surfeit of interim applications over recent months, at least the applications made by the father have largely been justified.

8. For those reasons, I make the following orders. 

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 February, 2017.

Associate: 

Date:  28 February 2017