McTaggart and McTaggart

[2017] FCCA 3253

FEDERAL CIRCUIT COURT OF AUSTRALIA

McTAGGART & McTAGGART [2017] FCCA 3253

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund.

Legislation:

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

Applicant: MR MCTAGGART

Respondent: MS MCTAGGART

File Number: ADC 3979 of 2014

Judgment of: Judge Young

Hearing date: 24 November 2017

Date of Last Submission: 24 November 2017

Delivered at: Adelaide

Delivered on: 24 November 2017

REPRESENTATION

Counsel for the Applicant: Ms Kneebone

Solicitors for the Applicant: Denise Rieniets & Associates

Counsel for the Respondent: Ms Ross

Solicitors for the Respondent: Mildwaters Lawyers

ORDERS

1. That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children W born (omitted) 2007, X born (omitted) 2008 and Y born (omitted) 2017 and Z born (omitted) 2003 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship W born (omitted) 2007, X born (omitted) 2008 and Y born (omitted) 2017 and Z born (omitted) 2003 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 by 28 February 2018.

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

   (a)any views expressed by the said children and any factors (such as the said children’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 children.

5. 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.

6. That the parties are to telephone the Case Coordinator Children Dispute Services on (omitted) 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.

7. 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.

8. 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/ren 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.

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

2. 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).

3. 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 February 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.

4. That the matter be adjourned to 22 March 2018 at 9.30am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3979 of 2014

MR MCTAGGART

Applicant

And

MS MCTAGGART

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 application to set aside a parenting order made by consent on 8 February 2016.  The children concerned are Z, who is 14; W, 10; X, eight; and Y, six.  The consent orders provided that the children live with the mother and spend time with the father from Wednesday to Monday in alternate weeks.  That is, five nights a fortnight.  On 28 July, the father filed an initiating application, seeking the return of the children to live in (omitted).  It is not in dispute that the mother had relocated the children to a small town called (omitted), about 140 kilometres of (omitted).

3. The father says that he discovered this on 25 July 2017 from reading a school bulletin farewelling the children.  On 15 August 2017 the matter came before me on an urgent basis and submissions were made by counsel for the mother that, according to her instructions that there was no affidavit filed at that stage – there had been a drunken fight at a birthday party on (omitted), or thereabouts, in (omitted), which the father had attended with the children.  It was said that during the drunken fight a knife was produced and it was said that the children were put in very serious danger.

4. I ordered a section 11F report on that date and also made orders pursuant to section 69ZW, directed towards the Department of Child Protection as I have been told that there had been a mandatory report made about that fight, or the alleged fight.  On 24 August the father filed an application in a case seeking a recovery order and an order that Z, the 14 year old, live with him.  His supporting affidavit took issue with the submissions made by the mother’s counsel on 15 August and, in particular, took issue with the assertion made that the mother had relocated to ensure the safety of the children following the incident at the party on (omitted) that I have already mentioned.

5. Affidavits were also filed on behalf of the father deposing to the incident on (omitted) 2017 from, among others, a Mr W.  Mr W said in his affidavit that there had been some rough play at the party that had upset X, the eight year old, and X had some wax spilled on his jumper.  He apparently complained to the father who, according to Mr W’s affidavit, berated him, Mr W.  Mr W said there was no fight, but there were angry words directed at him by the father.  Mr W said in his affidavit that the father’s unhappiness was justified in the circumstances and he, Mr W, in substance said that he had behaved foolishly.

6. In any event, the child, X, became upset and W telephoned her mother to come and collect her.  The mother returned the children to the father either the next day or the day after that in accordance with the existing orders.  In other words, there was an incident but it appears to have been relatively minor and certainly did not fit the description of the very serious allegations made by the mother on 15 August 2017. 

7. The father also filed affidavits from three other persons deposing that they had been at a birthday party with the mother, in (omitted) 2017, when she became involved in a dispute with a Mr A, who the witnesses said was her partner.  They said that Mr A became abusive and violent, breaking a window and breaking into a bedroom where, as far as I can understand the evidence, both the mother and the children were.  One of the affidavits said that Mr A chased the mother and this allegedly occurred at around about 6 am with the children present and upset.

8. In the father’s affidavit material he also claimed that the mother’s real motivation for relocation to (omitted) was that once his obligation to pay, in effect, spousal maintenance in order for the mother to pay her rent was finished, according to the terms of the final property orders between the parties, she wanted him to resume payments and he was unwilling to or willing to only on certain conditions. 

9. On 8 September 2017 the mother filed an affidavit deposing to what she had been told about the party on (omitted) 2017.  That is, the party referred to by Mr W in his affidavit that I have mentioned.  She said that the father was drunk.  He was incapable of caring for the children.  There was a physical fight and production of a knife leading to the children becoming terrified.  She also said that the children relayed the father’s threats to kill her and she alleged that there was ongoing abuse of the children by the father.  The mother flatly denied the incident involving Mr A in (omitted) 2017 and she denied that Mr A is her partner.

10. On 22 September the father filed an affidavit from a Ms C who had been at the party on (omitted) 2017.  Ms C deposed that she had seen W screaming and upset and had helped W call her mother.  Ms C said she did not see any particular incident at the party nor did she see a knife produced or a fight.  Ms C is an employee of the (employer omitted) and she deposed that she felt she was obliged to make a mandatory report although, on the materials and the matters she deposed to witnessing, it is difficult to see why she felt that was necessary.  Nothing came of that report.

11. On 12 October 2017 the father filed an amended initiating application seeking orders that the children live with him and that they spend time with the mother on alternate weekends.  His supporting affidavit said that Z had moved in to live with him.  On 13 October the mother filed an amended response.  She no longer sought to relocate to (omitted) and nor did she seek that Z live with her.  Her affidavit in support maintains that her relocation to (omitted) was genuine and based on the father’s violence and threats to kill her.  Nevertheless, she voluntarily returned to (omitted) on about 24 October 2017 and re-enrolled the children in their old school.

12. On 27 September the interviews pursuant to the 11F order took place and a report was prepared.  The father admitted to the family consultant during his interview that he had been drinking at the party on (omitted), but said he was not drunk.  He said the host was drunk – that was Mr W, I understand – and that he, Mr W, had upset X.  He said that, while the children were collected by the mother, they were returned to him, by her the next day and he said that that was inconsistent with any professed fear of him by the children or asserted fear of him by the children.

13. The 11F report noted that the mother’s claims of violence did not appear “especially convincing”.  The father also repeated his claim to the family consultant that the mother had used this relatively minor incident on (omitted) 2017 as a pretext to leave (omitted).  There seems to be possibly some substance in this because the mother said in her interview with the family consultant that she had been unable to afford rental accommodation in (omitted).  The family consultant also interviewed two of the children:  Z and X.  W, the 10 year old, refused to be interviewed, and Y, due to her age, was not interviewed.

14. The 14 year old, Z, said to the family consultant that he wanted to live with the father.  He said that the mother, and I paraphrase, had tried to influence him by saying that the father was a drug dealer and that he, the father, was going to kill her.  Z said that his mother would not let him speak to the father.  He said that, now that he had left to live with his father, his mother said that the younger siblings were scared of him.  He said that none of this was true and he also said – tellingly, in my view – that his parents needed to “grow up”.  As I mentioned, the 10 year old, W, declined to be interviewed.  There is no explanation in the consultant’s report about why that might be.

15. The eight year old, X, said that he had lived in (omitted) because his mother was afraid of his father.  He said he was uncertain about why he no longer saw his father.  He said he missed Z, his 14 year old brother, and wished Z would live with him.  He said that he was happy to live with either parent.  The family consultant informally observed the children with the father and also observed the three youngest children with the eldest child, Z.  She said that the father was warm and affectionate towards the children and they did not display any signs of fear of him.  She said there was a comfortable and affectionate interaction between them all.  She saw no signs of fear of Z by the younger children.

16. The family consultant expressed concern about whether the younger children’s relationship with the father and Z will be maintained if they continue to live in (omitted).  She recommended that the children return to (omitted) and, if the mother did not wish to relocate, then the children should live with the father.  Sometime after that report was published to the parties, the mother moved back to (omitted) with the children.  The so-called rule in Rice & Asplund (1979) FLC 90-725 recognises that continued or repeated litigation would ordinarily not be in the best interests of the child. Existing orders generally ought not to be reconsidered unless merited because of some significant change in circumstances – circumstances that create a real prospect that orders may be changed.

17. In this case, there have been, in my view, some significant factors arising since the making of the orders by consent in February 2016.

    a)There has been the mother’s unilateral relocation to (omitted) and the cessation of the father’s time with the children for about three months.  This was in defiance of Court orders.  It was accompanied by an allegation that the father exposed the children to serious risk of physical harm, allegations that seem implausible and may have been knowingly false.  I cannot make a finding about that.

    b)There is also Z’s decision to live with the father and, as I understand it, he is not spending any time with the mother at all.  This may affect the relationship between him and his three younger siblings because, under the current orders, they spend only five days out of 14 in the father’s household and only five days out of 14 with their older brother.  That is, in my view, a significant new factor.

    c)There is also a plausible allegation that, in February 2017, earlier this year that the mother exposed the children to serious family violence from Mr A, who she apparently continues to deny was or is her partner.

18. I am satisfied that there is a real prospect of some alteration in the consent orders made in February 2016, possibly with some variation in the time that the younger children spend with the father, in order to reinforce their relationship with Z, in particular.  Accordingly, I propose to make orders for the further disposition of this matter.  I am going to make an order for the preparation of a family report, with a release date of 28 February 2018 and I am going to adjourn the matter for mention to 22 March at 9.30am.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  20 December 2017