Maysen and Maysen

[2018] FCCA 2616

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYSEN & MAYSEN [2018] FCCA 2616

Catchwords:
FAMILY LAW – Parenting – interim hearing – time arrangements – allegations that the child has been exposed to inappropriate material – interim orders made.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MR MAYSEN

Respondent: MS MAYSEN

File Number: DNC 84 of 2018

Judgment of: Judge Young

Hearing date: 28 August 2018

Date of Last Submission: 28 August 2018

Delivered at: Darwin

Delivered on: 28 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Bowen

Solicitors for the Applicant: Bowen Lawyers, Barristers & Solicitors

Counsel for the Respondent: Mr Crook

Solicitors for the Respondent: Maley Barristers & Solicitors

ORDERS

1. That orders 2(a) and 3 of the orders made on 8 May 2018 and amended on 22 May 2018 be discharged.

2. That the child [X] born 2011 (“the child”) spend time with the father on special occasions as follows:

   (a)On Father’s Day, from 6 pm on the day before Father’s day to 6 pm on Father’s Day;

   (b)On the child’s birthday if it falls on a school day for no less than 2 hours and if it falls on a non-school day for no less than 5 hours at the times as agreed to between the parties, and failing agreement from 10 am to 3 pm;

   (c)On Christmas Day 2018 provided that both parties are in the same location from 5 pm Christmas Eve until 12 noon Christmas Day;

   (d)On Easter Sunday 2019 from 9 am to 5 pm.

3. That the child live with the Mother.

4. That the child spend time with the Father each alternate weekend with the father to collect the child from school on Friday (or Thursday if Friday is a holiday) and deliver the child back to school on the following Monday (or Tuesday if Monday is a holiday) on school days, and otherwise in accordance with order 2 herein, on condition that the Father is available to care for the child during that period himself.

5. That the changeovers occur at the child’s school on a school day and at Suburb A McDonalds on a non-school day.

6. That the Father is not to access any inappropriate games or computer content whilst the child is in his care.

7. That the Father file and serve Affidavit setting out in detail all computer games the child plays whilst in his care, and for which of these games it is possible to access pornographic content.

NOTATION:

A.  That by consent the child is to have her own bed to sleep in with adequate privacy during the time the child spends with the Father.

Travel

1. That should the time spent with the child be associated with an interstate travel, the following arrangements shall apply, unless otherwise agreed to between the parties in writing:

   (a)the parent with whom the child is to travel shall provide to the other no less than 14 days’ notice before the departure date, of the intention to travel with the child interstate;

   (b)that at the time of the notice, the travelling parent shall give to the other parent the child’s general travel itinerary to include address at which the child will be staying and telephone number on which the child can be contacted during the child’s absence from her usual place of residence.

Communication

1. That the mother or the father, as the case may me, shall make the child available to receive telephone calls from the other parent, and to enable the child to telephone, SMS, email, FaceTime or Skype the other parent at all reasonable times, and no less than on 2 occasions in each week when the child is free to include Monday and second day, as agreed to between the parties, from 6.45 pm until 7.15 pm with the father, and with the mother on two occasions during the time the child is spending with the father, as nominated by the mother.

2. That the mother and the father shall communicate with one another about the child’s issues by way of emails or SMS messages at all reasonable times, and by way of telephone in the event of emergencies.

3. That the mother or the father, as the case may be, inform the other as soon as practicable, of any medical and like emergencies concerning the child, that may arise, when the child is in the respective parent’s care, and provide to the other parent  details of any treating practitioners, hospitalisation and medication.

4. That each parent shall inform the other of and follow all directions regarding medication and treatment for the child, as recommended by a qualified medical practitioner.

5. That the mother and the father shall keep each other informed of their current email addresses and telephone numbers, and of any changes within 48 hours from the changes occurring.

Miscellaneous

1. That the parent who has the care of the child, shall take all necessary steps to deliver the child to any extracurricular activities agreed upon by the parties for the child to attend, that may fall during the time the child is spending with the respective parent.

Injunctions

1. That the parents shall be restrained and injunction issue restraining them from:

   (a)Attending on or remaining in the vicinity of the residence or workplace of the other or allowing their partner or any member of their family, to do so;

   (b)Denigrating the other, their partners or any member of their family to or in the presence of the child or allowing any other person to do so;

   (c)Discussing any aspects of these proceedings or matters pertaining to child support with or in the presence of the child or allowing any other person to do so; and

   (d)Physically disciplining the child or allowing the child to be unsupervised.

2. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child [X] born 2011 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2011 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised.

7. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

8. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

9. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

10. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

    NOTING:

    A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

    B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

12. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

14. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before  1 December 2018 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

15. That the matter is listed for trial on 1 and 2 May 2019 at 10.00am (allowing 2 days).

16. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

17. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.

18. That at least 48 hours prior to trial, Counsel for each party  and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

    (a)a list of the material relied upon;

    (b)a brief chronology listing significant events;

    (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

    (d)a list of other contentions relevant to the decision;

    (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

    (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

    (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

    (h)the actual orders sought.

19. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

20. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

21. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

22. That the matter be adjourned to 11 February 2019 at 11:00am for a compliance check before Judge Young at the Federal Circuit Court of Australia, Darwin.

23. That pursuant to section 65DA(2) and 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A attached hereto, and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 84 of 2018

MR MAYSEN

Applicant

And

MS MAYSEN

Respondent

REASONS FOR JUDGMENT

Ex- Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim hearing about a child, [X], who is six years old.  She will turn seven in (date). 

3. The parties separated in February 2017.  The parties have apparently, in latter times, adopted a regime of [X] spending time with her father on alternate weekends. 

4. The matter has become complicated because of allegations made to Territory Families that the father had acted inappropriately in relation to [X] – I think it was limited to [X] – in a sexual way.  Those allegations have been investigated by Territory Families and the Northern Territory Police and found to be without substance. 

5. Despite that, the mother, in her affidavit filed in these proceedings, filed on 24 August, some four days ago, has renewed an allegation that the father has exposed [X], while she is in his care to a pornographic computer game.  The game that she alleges the father has exposed the child to is something called (omitted). 

6. At page 44 of the annexures to her affidavit of 24 August she has a screenshot, it would appear, of this computer game.  Apparently, the open aspect of the game contains cartoon pictures of what appear to be young women or girls, perhaps teenage girls, and it says, under the picture there, of (omitted):

   Content posted in this community may not be appropriate for all ages or may not be appropriate for viewing at work.

7. I beg your pardon, it is not the entrance to the game, it is apparently an online discussion board about the game. 

8. It does not appear directly to be evidence about the game but, rather, a discussion of the game by persons who are simply identified by web identities. 

9. Just to take an example, one poster says:

   Is this porn any good?

10. And the next post, apparently, in reply is:

    I recommend this game 100 per cent unless you are somehow religious and don’t want to sin.

11. The next is:

    Best interactive cartoon porn you’ll ever come across, mate.

12. The next one is:

    If you see this game as porn, in the first place, then you haven’t played it.

13. So the discussion board contains a dispute about whether this game is pornographic or not.  I, at an interim hearing, simply cannot decide whether or not it is pornographic or even inappropriate.

14. In the materials produced by Territory Families and/or the police, there is a note of an interview with the mother and [A], who is her older daughter from another relationship, and [X]. It is said during the interview – and it is a little bit unclear who is speaking but it probably is the girls:

    The girls play (omitted) and (omitted) on the PC. (omitted) is an online fantasy game like World of Warcraft.  Once the girls played (omitted) with [X]’s father.  It is a dating game and the girls on there are dressed provocatively. 

15. That is unlikely to be a word used by a six year old.  So I am not sure where that information is coming from:

    Another game they play there with [X]’s dad is (omitted).  It is a dating game and you have to complete puzzles.  You date girls, romance them to get points.  There are actions of romance and passion on these games.  [X] said she has helped her dad play that once. 

16. The mother’s concern about that is expressed in a note a little below that where she advised that she thought the father of [X] should be investigated more regarding the type of games he is exposing the children to. 

17. In the father’s affidavit, filed on 22 August, admittedly before the mother’s affidavit, he says this at paragraph 12(g):

    Ms Maysen deposes that I play pornographically sexual computer games with [X], which I vehemently deny.  I say that all the games I play with her have been rated PG or lower.  Some of the images show girls on the beach in swimwear but none are ever nude. 

18. It goes on at 12(h):

    While it is possible to pay money and then apply a patch and unlock nude content, I have never done this, and the girls have never been exposed to anything that could be described as pornographic.  I aim to educate [X] and give her excellent computer skills.  She plays games with me or Mr L [that is a reference to a friend of the father] as a social activity so that I can be a part of her supervised learning. 

19. He goes on to say at 12(i):

    The following are some of the games [X] plays:  (games omitted). 

20. He provides short descriptions of those games in each case.  I would infer that, given the short descriptions, that none of those games are likely to have any pornographic content, either ostensible or accessed on paying a fee. 

21. When I asked the mother’s counsel about 12(h), that is, the game where nude content could be unlocked, I was told that that was a game called (omitted).  That does not appear to be mentioned in the notes from Territory Families.  The only specific computer game mentioned there, as far as I can see, is the one I have mentioned, (omitted). 

22. I was concerned that the father would consider it appropriate to play a computer game with a six year old girl, his daughter, where pornographic content could be accessed, even on paying a fee.  I was surprised by that information.

23. While I am very far from satisfied that the father has actually accessed any pornographic content while [X] has been in his care – an allegation that has been specifically investigated by the authorities and not substantiated, which I have to give very significant weight to. Nevertheless I am, as I say, a little bit surprised by the information I was given.  I would consider it very possibly indicating a lack of maturity or insight into the developmental needs of a quite young child.  As I say, this is an interim hearing, I cannot reach any conclusions.  But that is the concern that that information raised for me.

24. As against that, there is a s11F memorandum, produced by a family consultant, where the father was said to impress as balanced in his approach and he appeared child-focused and he would like to be a permanent presence in [X]’s life and he also strives to remain a good role model for her.  I have no reason to doubt that. 

25. He filed an affidavit from a psychologist, Ms H, who deposed to undertaking various personality and psychometric tests with the father and he generally scored as entirely normal in all aspects, as far as I could see. 

26. He does, apparently, have some treatment for ADHD and receives medication.  But, apart from that, the father’s psychologically functioning appears quite unexceptional. 

27. I should also say that there are some indications of deep hostility by the mother towards the father, in particular, her description in the s11F memorandum of the father as “charismatic, intelligent, narcissistic and evil.”

28. I note, with some concern, that the description of “evil”, using the word “evil,” appears to have been repeated in an interview with [A] and [X] on 9 April 2018 where it is said that [A] and [X] described the father as “evil.”

1. That, obviously, gives rise to quite serious concerns about whether or not the congruence of the use of denigrating words by mother and child is indicative of an unwillingness of the mother to support the child’s relationship with her father.  I do not believe I can make any assessment of that at the moment.

2. Having regard to this background and having regard to the matters in section 60CC(2), in particular, the right of a child to a relationship with a parent, the father, in this case, but also section 60CC(2)(b), the need to protect the child from psychological harm. I have some continuing concerns about the access to games and I will make an order for the child to spend time with the father. In conformity with the orders the mother seeks, I propose to make an order that the father is to file an affidavit setting out, in detail, all the computer games he has played with [X] and whether it is possible to access pornographic or otherwise inappropriate content in those games.

3. It may be that this concern is simply overblown and overstated but, at the moment, I do not know whether that is the case or not. 

4. The orders that the father seeks are for alternate weekend time but increasing steadily by a day each month, moving to six nights out of 14.  This is on an interim basis.  It is also said that the paternal grandmother and the father’s friend, Mr L, whose surname I do not recall from the material, ought to be permitted to supervise or look after [X] without restriction in effect because the father as a part of his job as a (occupation omitted), works nightshift. 

5. If I were to make those orders that would necessarily involve making orders that this child be placed in the care of people other than the father, and including being placed in the care of someone else, a man who is not a blood relation for indeterminate periods.  Such an order does not appear to me to be at all appropriate in an interim hearing, particularly when it is opposed by the mother. 

6. The difficulty with the orders that the father seeks is simply that, given his shift work, it is not clear to me how often or when he would be available to care for the child and when other persons are available to care for the child.  There is not, for example, an affidavit from the friend Mr L.

7. The mother opposes the paternal grandmother having any involvement with the child at this stage, even to pick her up from school, because she says that the paternal grandmother has displayed hostility to her.

8. I have not been able to make any assessment of that.  But, on an interim hearing, I am satisfied that if I make an order for the child to spend time with the father, it should be when the father is available to care for the child and not having to place her in the care of others.

9. Given my concern, which, I suspect, can easily be displaced by the father filing the affidavit that I have mentioned, and given, perhaps more importantly, my uncertainty about what an order for extended time of the child with the father would mean, given that he works shift work, I am not prepared to make the orders sought by the father. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 September 2018