Meadis and Meadis & Ors - [2020] FamCA 543

FAMILY COURT OF AUSTRALIA

MEADIS & MEADIS AND ORS

[2020] FamCA 543

FAMILY LAW – CHILDREN – interim parenting orders – practice and procedure – applications by Applicant father and Second and Third Respondent paternal grandparents for review of Senior Registrar’s decision – where father is imprisoned for serious assault of Respondent mother – family violence perpetrated upon the mother – safety of the mother – assessment of risk to the three children of the relationship – issue of mother’s mental health and parenting capacity – where paternal grandparents had significant earlier involvement in the children’s lives – where father is seeking for the children to visit him in prison – paternal grandparents no longer prepared to facilitate taking children to prison – father seeking telephone communication – applications of father and paternal grandparents dismissed – costs order.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 62G(5), 69ZX(4), 117(2A)
Family Law Rules 2004 (Cth) Pt 18.2, r 18.10(2)

APPLICANT:

Mr Meadis

FIRST RESPONDENT:

Ms Meadis

SECOND RESPONDENT:

Mr G Meadis

THIRD RESPONDENT:

Ms H Meadis

INDEPENDENT CHILDREN’S LAWYER:

Joliman Lawyers

FILE NUMBER:

MLC

11834

2016

DATE DELIVERED:

16 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Hartnett J

HEARING DATE:

26 June 2020

REPRESENTATION

THE APPLICANT:

In person by video link

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Harris Lieberman Solicitors

THE SECOND RESPONDENT:

In person

THE THIRD RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McLeod

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Joliman Lawyers

Orders

The applications in a case filed by the Applicant on 13 November 2019 and 21 November 2019 are dismissed.
The application in a case filed by the Second and Third Respondents on 6 March 2020 is dismissed.
The orders made by Senior Registrar Fitzgibbon on 21 October 2019 and 13 November 2019 are affirmed.

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 Meadis & Meadis 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 MELBOURNE

FILE NUMBER: MLC 11834 of 2016

Mr Meadis

Applicant

And

Ms Meadis

First Respondent

And

Mr G Meadis

Second Respondent

And

Ms H Meadis

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Preliminary

Before the Court are applications for review of orders made by Senior Registrar Fitzgibbon on 21 October 2019 and 13 November 2019. A true copy of the order made 21 October 2019 is attached to these reasons. The application for review of the earlier orders was made by the Applicant father (‘the father’) in an Application in a Case filed on 13 November 2019.
Additionally, before the Court, and with leave having been granted to file an application out of time, is an Application in a Case filed on 6 March 2020 by the Second and Third Respondents, who are the paternal grandparents of the children the subject of the proceeding (‘the paternal grandparents’), with that application seeking review of the orders made by Senior Registrar Fitzgibbon on 21 October 2019 and 13 November 2019.
The orders made by Senior Registrar Fitzgibbon on 21 October 2019 were interim parenting orders. On 13 November 2019, Senior Registrar Fitzgibbon made further orders upon the First Respondent mother’s (‘the mother’) application as to costs in respect of the interim hearing of the parenting orders proceeding which resulted in the orders on 21 October 2019. The mother sought an order:-
That the husband pay the wife’s costs on an indemnity basis, such costs to be paid from the husband’s share of monies to which he was entitled pursuant to orders made in the Federal Circuit Court on 14 January 2019.[1]
[1] Response to an Application in a Case filed by the mother on 28 November 2019, page 4.
The orders made on 13 November 2019 are, relevantly, as follows:-
1.That the applicant husband and the second and third respondents pay the costs of the respondent wife of and incidental to the interim hearing on 17 October 2019 fixed in the sum of $17,500 as follows:
(a)the husband to pay $8,750; and
(b)the second and third respondents pay $8,750.
2.That payment of the husband’s half is to be the subject of determination by a Judge as part of the matters listed in the Judicial Duty List on a date which the Acting Senior Registrar may fix on 28 November 2019.
…
The father sought review of the above orders by filing a second Application in a Case on 21 November 2019. The father sought that neither he nor the paternal grandparents make any payment of costs to the mother.
The paternal grandparents also sought (in their review application filed on 6 March 2020) that neither they nor the father make a payment of costs to the mother and in that regard that they be reimbursed that which they had already paid in compliance with the orders of Senior Registrar Fitzgibbon.
The mother and the Independent Children’s Lawyer sought dismissal of the above applications for review and a continuation in operation of the parenting orders made by the Senior Registrar on 21 October 2019 and the costs orders made by the Senior Registrar on 13 November 2019. The mother sought indemnity costs in respect of the review applications.
Such applications for review are governed by Pt 18.2 of the Family Law Rules 2004 (Cth) (‘the Rules’).
The father is currently incarcerated in the K prison in L Town Victoria. In those circumstances, upon the hearing, the father withdrew from the interim orders previously sought by him that he and the mother have equal shared parental responsibility of the children.
The parenting orders proceeding, or that part of it that remains, is in respect of the father and mother’s three children of the marriage (‘the children’):-
a)X born in 2006 who is now 14 years of age and is on the autism spectrum. He is high functioning but has special needs;
b)Y born in 2008 who is now 12 years of age; and
c)Z born in 2010 who is now 10 years of age.
The father was self-represented in the proceeding and attended via telephone link from K prison. The paternal grandparents were also self-represented and attended in person. The mother was represented by Counsel as was the Independent Children’s Lawyer.
The Court is mindful of Pt 18.2 of the Rules. The hearing proceeded as a rehearing of the whole matter. The evidence the Court could receive in respect of the re-hearing was that as set out in r 18.10(2) of the Rules. That is as follows:-
(2) The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing;
(b)any further affidavit or exhibit;
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The Court notes no transcript was available of the hearing before Senior Registrar Fitzgibbon.

Material relied upon

The material relied upon by the father was as follows:-
a)an Amended Initiating Application initially filed in the Federal Circuit Court on 13 November 2018;
b)an Application in a Case filed on 2 September 2019;
c)an Application in a Case filed on 13 November 2019;
d)an Application in a Case filed on 21 November 2019;
e)a Notice of Child Abuse, Family Violence or Risk of Family Violence (‘Notice of Child Abuse’) filed on 2 September 2019;
f)affidavits sworn by him on 28 August 2019 and 19 September 2019;
g)an outline of case document filed on 4 December 2019; and
h)a document of written submissions by him as to his claim for privilege dated 2 December 2019.
The material relied upon by the mother was as follows:-
a)a Further Amended Response to Initiating Application filed on 3 October 2019;
b)an Application in a Case initially filed in the Federal Circuit Court on 6 March 2019;
c)a Response to an Application in a Case filed on 28 November 2019;
d)an affidavit sworn by her on 3 October 2019;
e)an affidavit of Ms O, forensic psychologist, sworn on 2 October 2019; and
f)an outline of case document filed on 24 June 2020.
The material relied upon by the paternal grandparents was as follows:-
a)a Further Amended Response to Initiating Application filed on 26 September 2019
b)affidavits of Mr G Meadis (‘the paternal grandfather’) sworn on 2 November 2018 and 13 September 2019;
c)an affidavit of Ms H Meadis (‘the paternal grandmother’) sworn on 6 May 2019;
d)an outline of case document filed on 14 October 2019; and
e)redacted transcript documents of conversations between the father in prison and the paternal grandparents, and between the father in prison and the children, such transcripts being for the period from 1 December 2018 until 12 October 2019, returned upon subpoena issued to Corrections Victoria and tendered into evidence on 17 October 2019 (‘the transcripts’). Before provision to the mother and the Independent Children’s Lawyer pursuant to a Court order, the paternal grandparents had redacted parts of the transcripts of their own volition and contrary to Court order.
The Independent Children’s Lawyer relied upon the material already placed before the Court by the parties and, additionally, the following:-
a)an outline of case document filed on 14 October 2019; and
b)the Child Inclusive Conference Memorandum prepared by family consultant Ms R dated 8 May 2019.

Background

There is a lengthy history of litigation in this matter. Relevantly, the parties married in 2003. They separated on 17 November 2016, whilst living in Town A in regional Victoria. The mother and children have since left Town A. The paternal grandparents continue to reside in Town A. Early parenting orders of the Federal Circuit Court, made as final orders on 21 December 2017, provided for equal shared parental responsibility of the children and for week about parenting arrangements between the mother and father. The father then lived with the paternal grandparents, hence the children spent time with the father at the paternal grandparents’ home, residing there each second week. The mother’s then application to relocate with the children from Town A to the City J region had been dismissed.
Approximately seven months later, and on 24 July 2018, the mother was seriously assaulted by the father. On 25 July 2018, the father was apprehended by the police and remanded in custody with bail denied to him in August 2018.
The father was sentenced in September 2019 in the County Court of Victoria. He was formally convicted of the following offences:-
a)false imprisonment (common law);
b)assault (common law);
c)aggravated burglary – offensive weapon; and
d)make threat to kill.
The father was sentenced to a total of four years and six months imprisonment with a minimum non-parole period of three years, less 421 days then served. He pleaded guilty to each of the four charges. The nature of the father’s offending is set out later in these reasons.
Prior to the convictions of the father as described above, the mother had obtained, on application by the police, and immediately following separation of the parties (17 November 2016), an interim intervention order against the father. It named the mother and the children as the affected family members and restrained the father from having contact with them and from being within proximity to them. Breaches of that order occurred, including the father entering the mother’s home via her roof tiles, as well as he, and allegedly, the paternal grandparents, surveying the mother’s home and recording her coming and going to and from that home.[2] The involvement of the paternal grandparents in surveying the mother’s home was denied by them, and there is no evidence before the Court on this hearing whether a finding was made in respect of that allegation on the breach of the intervention order hearing in the Magistrate’s Court. The father was found guilty of two breaches of the intervention order in June 2018. He was given a good behaviour bond for six months.[3] He was required to complete a Men’s Behaviour Change Program. As a result of these breaches, the mother had CCTV cameras installed around her home.[4]
[2] Affidavit of Ms H sworn 2 October 2019, Exhibit “H-3”, paragraph 5.
[3] Ibid.
[4] Ibid.
In the month following the father’s serious assault upon the mother, and on 24 August 2018, the mother filed an application in the Federal Circuit Court seeking a suspension of the final parenting orders made on 21 December 2017. As part of that application, the mother again sought an interim order permitting her to relocate with the children from Town A to the City J region.
On 5 September 2018, orders were made in the Federal Circuit Court suspending the children’s time with the father (he being in jail) and otherwise ordering that the children live with the mother.
On 7 November 2018, the paternal grandparents filed an application seeking the children spend time with them each alternate weekend, for one week during the term school holidays and for two weeks during the Christmas/Summer holidays.
On 14 November 2018, an interim hearing took place in relation to the mother’s application to relocate to the City J region with the children; the paternal grandparents’ application for the children to spend time with them; and the father’s application to communicate with the children. At that interim hearing, the father indicated to Judge Stewart of the Federal Circuit Court that he intended to plead not guilty to the assault charges against him. Both he and the paternal grandparents sought to restrain the children’s relocation from Town A.
On 16 November 2018, interim orders were made in the Federal Circuit Court permitting the mother to relocate the residence of the children to the City J region. Orders were also made providing for the children to spend time with the paternal grandparents every third weekend from Saturday morning until Sunday afternoon (commencing on a Friday during school holidays) and for the children to speak with the father by telephone once during the weekend when they were in the care of the paternal grandparents. The interim orders did not require the mother to keep the father advised of her residential address. Paragraph 8 of the interim orders required the mother and the paternal grandparents to:-
8.1Keep the other advised at all times of their respective residential addresses and mobile telephone numbers;
8.2Advise the other immediately in the event that the children, or any of them suffer any serious illness or injury;
8.3Advise the other of all sporting and extra-curricular activities in which the children, or either of them, are involved and permit the other to attend such functions.
The mother relocated with the children to the City J region in December 2018.
On 13 December 2018, the father filed a Notice of Appeal against the interim orders of 16 November 2018.
On 18 December 2018, the father signed an Application in a Case and affidavit seeking a stay of the interim orders of 16 November 2018. That application was formally filed on 14 January 2019.
On 14 January 2019, the matter was listed for a final hearing before Judge Stewart in the Federal Circuit Court. The final hearing was in relation to a property orders proceeding between the father, the mother and the paternal grandparents. At the final hearing, the father indicated to Judge Stewart that he would be seeking an adjournment of that hearing. The father told Her Honour that the basis of his adjournment application was that:-
a)he was likely to be acquitted of the criminal charges because his defence was that the mother had “done it herself” and “had set him up”;
b)after he was acquitted, Her Honour, or another Judge of the Federal Circuit Court, would be in a position to make findings against the mother which would result in an order that the children live with him; and
c)on that basis he should receive a greater share of the property pool available for division between the parties.
The proceeding was not adjourned. Final property orders were made by consent and by the Federal Circuit Court on 14 January 2019. There remain presently sale proceed monies to be distributed between the father and mother in accordance with those orders. There is, however, a security for costs application, filed by mother, which is yet to be determined and which seeks payment of such security out of those funds.
On 4 February 2019, the father’s application to stay the interim orders of 16 November 2018 was heard and dismissed. The father appealed this decision but subsequently abandoned his appeal.
On 29 April 2019, the children, the mother and the paternal grandparents attended upon a family consultant for a Child Inclusive Conference.
On 30 April 2019, the father filed an Application in a Case seeking, relevantly, that the children spend time with the paternal grandparents each alternate weekend and that the children be permitted to visit the father at the prison and whilst in the care of the paternal grandparents.
On 7 May 2019, the paternal grandparents filed an Amended Response to Initiating Application seeking, relevantly, that the children spend time with them each alternate weekend from 9.00am on Saturday until 6.00pm on Sunday; for one week during each of the school holidays; and that changeovers occur at P Town in regional Victoria.
On 10 May 2019, the mother filed an Amended Reply seeking, relevantly, sole parental responsibility of the children; that the children spend time with the paternal grandparents from 10.00am until 2.00pm on the fourth Sunday of each week; and that the children spend no time with the father but communicate with the father by telephone every third weekend with the mother to facilitate the call.
On 14 May 2019 the proceeding was transferred from the Federal Circuit Court to the Family Court of Australia.
On 6 June 2019, the father’s appeal (as referred to in paragraph 29 above) was listed for hearing. On the day of the hearing, the father withdrew his appeal. An order was made for the father to pay the mother’s costs of $5,000. That order was complied with by the father.
On 2 September 2019, the father filed a further Application in a Case. He sought, relevantly, the following parenting orders:-
Orders relating to the children
(1)All previous parenting orders be discharged.
(2)The Father and Mother have equal shared parental responsibility for the children X born in 2006, Y born in 2008 and Z born in 2010 (“the children”)
(3)The children relocate to the Town A district at the conclusion of Term 4 2019.
(4)The children attend school at Town A, commencing at the start of Term 1 2020.
(5)The Father, Mother and Paternal Grandparents:-
(a)keep the other advised at all times of their respective landline and mobile telephone numbers;
(b)advise the other immediately in the event that the children, or any of them suffer any serious illness or injury;
(c)authorise any medical practitioner upon whom the children, any of them, may attend from time to time, to communicate with the other in relation to the children’s medical condition and/or requirements;
(d)Authorise all schools at which the children may attend, from time to time, to:-
(i)provide the other, at the expense of the other, copies of    all school reports, school notices and school photograph order forms in relation to the children;
(ii)communicate with the other, in writing or email, in          respect to the children’s progress at their respective schools;
(iii)permit the other to attend all school functions to which    the parents and family are normally invited, provided the parents and others they may attend with do not     interact with one another; and the children are           provided with a reasonable opportunity to interact with    those who have come to support them;
(6)The Father, Mother and Paternal Grandparents, by themselves, their servants and/or agents be and are hereby restrained by injunction from:-
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household or family in the presence or hearing of the children or any of them and from permitting any other person so to do;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s household or family to Teachers, parents of the children’s friends and coordinators of activities the children participate in, or any of them and from permitting any other person so to do;
(c)discussing any proceedings or findings of any Court in relation to the Father, Mother or Paternal Grandparents in the presence or hearing of the children or any of them and from permitting any other person so to do;
(d)telephoning the other save for an emergency concerning the children, or any of them;
(e)changing the children’s school without written consent of the other or an order of the Court; and
(f)enrolling the children in extra curricular activities, in which they are not currently enrolled, which would impinge upon the other’s time with the children, without the written consent of the other;
(7)The Father, Mother and Paternal Grandparents are permitted to attend sporting and extra curricular activities, provided the parents and others they may attend with do not interact with one another; and the children are provided with a reasonable opportunity to interact with those who have come to support them;
(8)The ICL, Father, Mother and the Paternal Grandparents each be at liberty to provide a copy of these Orders to any one or more of the following:-
(a)the Principal or delegate of the Principal of the school attended from time to time by the children, or any of them; and;
(b)any Medical Practitioner and/or allied health professional attending upon the children, or any of them.
(9)The Father and the Mother do all such acts and things as may be required to ensure that X continues to attend upon his General Medical Practitioner and upon any medical and/or allied health practitioners as may be recommended by such health professionals, from time to time, to assist and monitor X’s Autism Spectrum diagnosis, and in respect thereto:-
(a)The custodial parent will advise the other of recommendations and consultations and seek their input into X’s treatment;
(b)The Father and the Mother meet the costs of consultations jointly
(10)The children attend a specialist children’s psychologist or counsellor, as determined/agreed by the ICL, for the purpose of supporting the children post separation, explain the findings and orders of the Courts as appropriate. In respect thereto the Father and the Mother:-
(a)facilitate the transfer of the children to the appointments; and
(b)follow all reasonable directions of the psychologist/counsellor in relation thereto; and
(c)permit the children’s psychologist/counsellor to contact the psychologist of the parents as they deem appropriate; and
(d)meet the costs of consultations jointly;
(e)be at liberty to provide to the psychologist/counsellor:-
(i)a copy of the final judgment of this Court; and
(ii)a copy of the final orders of this Court
(11)The Father and the Mother each, individually attend upon a psychologist, as determined/agreed by the ICL, for the purpose of undertaking therapy to enable each of them to understand the individual needs of each of the children, the necessity to put those needs ahead of their own and for general parenting and post separation counselling, and in respect thereto the Father and the Mother:-
(a)each attend at the direction of the psychologist and follow all reasonable directions in relation thereto;
(b)permit the parent’s psychologist to contact the psychologist/counsellor of the children as they deem appropriate; and
(c)meet the costs of their own respective attendance upon the psychologist;
(d)be at liberty to provide to the psychologist:-
(i)a copy of the final judgment of this Court; and
(ii)a copy of the final orders of this Court
(12)For the purpose of the children's changeover between the Father, Mother and Paternal Grandparents all changeovers occur at a supervised changeover centre in T City, as determined by the Independent Children's Lawyer (ICL), with the costs to be shared between the Father and Mother.
(13)The Father, Mother and Paternal Grandparents are permitted to provide the children with a phone for the purpose of facilitating calls and messages from/to the children.
(14)The Father, Mother and Paternal Grandparents are permitted to contact each other via email or text to negotiate, vary and make temporary agreements in relation to these orders.
Time spent with the children – post return to Town A
(15)The children live with the Mother as follows:-
(a)on each alternate weekend, with changeover occurring at 9:00AM and concluding at 4:30PM (noting long weekends will result in additional days);
(b)for half of the Christmas school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school year; and
(ii)conclude at 4:30PM on the middle day;
of such school holidays in 2019/20 and each alternate year thereafter; and
(iii)commence at 4:30PM on the middle day; and
(iv)conclude at 4:30PM on the last Saturday;
of such school holidays in 2020/21 and each alternate year thereafter;
(c)notwithstanding order 15(b) hereof, the parent with whom the children are not residing on Christmas Day shall have the children in their care between 3:00PM on Christmas Day until 4:00PM the following day;
(d)for half of the term one, two and three school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school term; and
(ii)conclude at 4:30PM on the middle day;
(e)on Mother’s Day weekend in each year from 4:30PM Friday to 4:30PM Sunday; and
(f)as otherwise agreed between the parties in writing, email or by SMS message.
(16)The children spend time with the Paternal Grandparents on weekends and during each of the school holidays, as facilitated by the Father while he is in care of the children, with such time to average no less than one weekend every three weeks.
(17)The children live with the Father or his nominee at all other times.
(18)For the purpose of the children’s changeover between the Father and Mother all changeovers occur at a supervised changeover centre in T City, as determined by the Independent Children's Lawyer (ICL);
(19)The time the Mother spends with the children shall be suspended pursuant to sub-paragraphs 15(a) hereof, on the Father’s Day weekend, in each year from 4:30PM Friday to 4:30PM Sunday;
(20)The Mother may communicate with the children as follows:-
(a)each Monday and Thursday between 7:00PM and 7:30PM with the Mother to instigate such calls; and
(b)on each of the children's birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent with the children to instigate such calls and the Father to facilitate such calls.
(21)The Father may communicate with the children as follows:-
(a)each Monday and Thursday between 7:00PM and 7:30PM on school holidays while the children reside with the Mother, with the Father to instigate such calls; and
(b)on each of the children's birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent with the children to instigate such calls and the Mother to facilitate such calls.
Time spent with the children – pre return to Town A
(22)The children live with the Father as follows:-
(a)on each alternate weekend, with changeover occurring at 9:00AM and concluding at 4:30PM (noting long weekends will result in additional days);
(b)for half of the Christmas school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school year; and
(ii)conclude at 4:30PM on the middle day;
of such school holidays in 2019/20 and each alternate year thereafter; and
(iii)commence at 4:30PM on the middle day; and
(iv)conclude at 4:30PM on the last Saturday;
of such school holidays in 2020/21 and each alternate year thereafter;
(c)notwithstanding order 22(b) hereof, the parent with whom the children are not residing on Christmas Day shall have the children in their care between 3:00PM on Christmas Day until 4:00PM the following day.
(d)for half of the term one, two and three school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school term; and
(ii)conclude at 4:30PM on the middle day;
(e)on Father’s Day weekend in each year from 4:30PM Friday to 4:30PM Sunday; and
(f)as otherwise agreed between the parties in writing, email or by SMS message.
(23)The children spend time with the Paternal Grandparents on weekends and during each of the school holidays, as facilitated by the Father while he is in care of the children, with such time to average no less than one weekend every three weeks.
(24)The children live with the Mother or her nominee at all other times.
(25)The time the Father spends with the children shall be suspended pursuant to sub-paragraphs 22(b) hereof, on the Mother’s Day weekend, in each year from 4:30PM Friday to 4:30PM Sunday;
(26)The Father may communicate with the children as follows:-
(a)each Monday and Thursday between 7:00PM and 7:30PM with the Father to instigate such calls; and
(b)on each of the children’s birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent, with the children to instigate such calls and the Father to facilitate such calls.
(27)The Mother may communicate with the children as follows:-
(a)each Monday and Thursday between 7:00PM and 7:30PM on school holidays while the children reside with the Father, with the Mother to instigate such calls; and
(b)on each of the children's birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent, with the children to instigate such calls and the Father to facilitate such calls.
Time spent with the children – while Father is in prison
(28)The children live with the Paternal Grandparents as follows:-
(a)on each alternate weekend, with changeover occurring at 9:00AM and concluding at 4:30PM (noting long weekends will result in additional days);
(b)for one week of the Christmas school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school year; and
(ii)conclude at 4:30PM eight days later;
(c)notwithstanding order 28(b) hereof, the Mother shall have the children in their care between 3:00PM on Christmas Day until 4:00PM the following day.
(d)for half of the term one, two and three school holidays in each year as agreed, and in default of agreement such time shall:-
(i)commence at 4:30PM on the Friday of the last week of    the school term; and
(ii)conclude at 4:30PM on the middle day;
(e)on Father’s Day weekend in each year from 4:30PM Friday to 4:30PM Sunday; and
(f)as otherwise agreed between the parties in writing, email or by SMS message.
(29)The children are permitted to visit the husband in Prison, whilst they are in the care of the Paternal Grandparents every other weekend and on Christmas school holidays.
(30)The children live with the Mother or her nominee at all other times.
(31)The time the Paternal Grandparents spends with the children shall be suspended pursuant to sub-paragraphs 28(a) hereof, on the Mother’s Day weekend, in each year from 4:30PM Friday to 4:30PM Sunday;
(32)The Father may communicate with the children as follows:-
(a)each Sunday with the Father to instigate such calls and the intent to conclude them within one hour in the morning from 7:30AM; and
(b)on each of the children’s birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent, with the children to request such calls from the Mother, who will advise the Paternal Grandparents and the Father to facilitate such calls.
(33)The Paternal Grandparents may communicate with the children as follows:-
(a)each Thursday between 7:00PM and 7:30PM with the Paternal Grandparents to instigate such calls; and;
(b)on each of the children’s birthdays; and;
(c)at all reasonable times when the children or any of them wish to call the Paternal Grandparents, with the children to instigate such calls and the Mother to facilitate such calls.
(34)The Mother may communicate with the children as follows:-
(a)each Monday and Thursday between 7:00PM and 7:30PM on school holidays while the children reside with the Paternal Grandparents, with the Mother to instigate such calls; and
(b)on each of the children’s birthdays; and
(c)at all reasonable times when the children or any of them wish to call the other parent, with the children to instigate such calls and the Paternal Grandparents to facilitate such calls.
(35)The children are permitted to provide letters, cards and gifts to the Father by providing them to the Paternal Grandparents, with the Father permitted to respond to these.
(36)Cards and gifts may be provided by Paternal Grandparents on behalf of the Father on special occasions, including Christmas, Easter and each of their birthdays.
(37)That Husband may write to the children and provide minor gifts (such as pictures/drawings) to them at any time via the Paternal Grandparents.
(38)That the Mother, her agents and servants; facilitate the transfer of items between the children and Paternal Grandparents.
…
(As per the original)

I have set out the above in full because that application was made some 13 months after the father had seriously assaulted the mother and is indicative of both a complete lack of insight into his behaviour, and a concerning need to continue to exert control over his family. The children, and therefore the mother, must return to Town A where the paternal grandparents live, is but one example. The further context in which this application was filed, was that of the father having already pleaded guilty to the charges (as set out in paragraph 20 above) in May 2019. The father knew sentencing was to occur in September 2019. The application was further an application on behalf of the paternal grandparents. One day prior to the hearing on 17 October 2019 before Senior Registrar Fitzgibbon, the father forwarded a letter to the Court dated 16 October 2019, wherein he attached an outline of case document, subsequently filed by the Court on 18 October 2019. In that document the father withdrew from some of the orders he had sought in his Application in a Case filed 2 September 2019. No doubt, he did so, as sentencing of him had occurred in September 2019. Nevertheless, he waited until the last minute to do so, and thereby incurring unnecessary preparation expense by the other parties.
During the course of the proceeding, subpoenas have issued to Corrections Victoria as filed by the mother’s solicitors on each of 30 April 2019, 8 August 2019 and 21 August 2019. The material sought has been recordings of conversations had between the father and the children, and the father and the paternal grandparents whilst the father has been in prison. In response to the first subpoena filed 30 April 2019, the paternal grandparents filed a Notice of Objection on 24 May 2019. In response to the further two subpoenas filed on 8 August 2019 and 21 August 2019, each of the father and the paternal grandparents separately filed a Notice of Objection on 21 August 2019. The father’s Notice of Objection claimed the telephone conversations were “…either privileged or confidential.”[5] The paternal grandparent’s Notice of Objection claimed the telephone conversations were “…not relevant to the current proceedings regarding the children”[6] (the paternal grandparents had objected on this basis in their earlier Notice of Objection filed on 24 May 2020) and subsequently were either “privileged or confidential.”
[5] Notice of Objection – subpoena filed by the father on 21 August 2019, page 2.
[6] Notice of Objection – subpoena filed by the paternal grandparents on 21 August 2019, page 2.
On 11 September 2019, Registrar Russell ordered, relevantly, and as to the recordings subpoenaed:-
1.That the Subpoena to Corrections Victoria is released to all parties for listening and copying but that the operation of this order is stayed for a period of 7 days being the review period of the said order.
2.That the Applicant and the Second / Third Respondents must pay the costs of the First Respondent fixed in the sum of $1,210.00 in equal shares within 14 days and that in the event an application to review is filed within 7 days, the operation of this order is stayed until determination of that application.
3.That the Applicant and the Second / Third Respondents must pay the costs of the Independent Children’s Lawyer fixed in the sum of $587.00 in equal shares within 14 days and that in the event an application to review is filed within 7 days the operation of this order is stayed until determination of that application.
The father and the paternal grandparents sought review. On 9 October 2019, Justice Macmillan ordered, by consent, relevantly:-
1.The Order of the Court dated 12 September 2019 be discharged.
2.That the documents (U.S.B’s) produced to the Court by Corrections Victoria pursuant to the subpoena issued by the wife on 8 August 2019 be released for copying to the 2^nd and 3^rd Respondents solicitors.
3.That the 2^nd and 3^rd Respondents solicitors listen to the U.S.B’s and transcribe all phone calls made by the Husband to the following numbers:
…
made when the children are in the care of the 2^nd and 3^rd Respondents…
…
4.That the 2^nd and 3^rd Respondents solicitors provide to the Wife’s solicitors, the Husband and the I.C.L copies of the transcripts referred to in paragraph 2 hereof by 4.00pm 15 October 2019, subject to any claim for privilege, with details of any such claim to be provided to all parties.
(As per the original)
The reference to the “Order of the Court dated 12 September 2019” is clearly a typographical error and the date meant should read “11 September 2019”. The Court has no record of any orders made on 12 September 2019.
On 17 October 2019, Senior Registrar Fitzgibbon ordered, relevantly, as follows:-
3.That Order 4 made on 9 October 2019 and the transcript referred therein and the unredacted transcript shall not be further copied or disseminated until further order of the Court NOTING THAT it is currently held by the solicitors for the Second and Third Respondents.
(Emphasis in original)
In his orders made on 21 October 2019 (as attached), Senior Registrar Fitzgibbon ordered, in particular, in respect of the issue of the transcripts:-
…
6. That:
(a)the Second and Third Respondents’ solicitors comply with Order 4 made 9 October 2019 by providing to the husband and the ICL un-redacted and clean copies of the transcript together by 25 October 2019; and
(b)the husband and Second and Third Respondents, who may do so on his behalf, send to the ICL details of all and any claims for privilege with respect to the transcript and do so by reference to date of telephone call, page and/or paragraph numbers and the basis for the claim.
…

Consideration

The orders as sought by the parties before the Senior Registrar were as set out in Senior Registrar Fitzgibbon’s judgment delivered 21 October 2019 at paragraphs 14 to 16 inclusive. These paragraphs are set out below:-
14.The orders sought by Mr Meadis sent under cover of letter of 16 October were lengthy. In summary he sought an order, again, for equal shared parental responsibility; that the children remain residing in the City J region, incorporating V Town; attend school as nominated; that he, the mother and paternal grandparents have orders about specific information sharing and which, effectively, arose from prior orders about parental responsibility; injunctions about non-denigration; and various orders about things concerning education, health treatment and so on. Importantly it was sought that the children when spending time with the paternal grandparents be permitted to visit their father in prison whilst in their care every other weekend, effectively one out of each two spent with them, and on Christmas school holidays, with changeovers occurring at 9am and concluding at 4.30pm on the last day of weekends; a week of the Christmas holidays; arrangements for Christmas Day and for term holidays, special occasions such as Father’s Day. His rationale being that proposed would not as a result unnecessarily interfere with the time spent with paternal grandparents. Otherwise, further orders proposed that the children would live with their mother at all other times; when that time or arrangements should, otherwise, be suspended; issues of communication with the children, by father, in 12 minute blocks, essentially, in accord with what was currently provided, but with some adjustments to that; permission to continue sending letters, cards and gifts.
15.The respondent wife was caused to change her proposed orders which had been advised shortly prior to the mention on the 10 October 2019, after receiving the day prior to this hearing the transcription of the subpoenaed telephone communication records. Her original proposal was for limited time spent by the children’s grandparents of some hours but resiled from that entirely. The basis for change was it was not in their interests for any time to be spent or communications continued. The ICL supports it.
16.There was support, however, for continuation of the orders permitting sending letters, gifts and cards, provided they are strictly vetted.
I note the paternal grandparents sought orders in terms of those sought on their behalf by the father in his application of 2 September 2019 and the subsequent letter to the Court.
Prior to the hearing before Senior Registrar Fitzgibbon, the Independent Children’s Lawyer and the mother proposed orders whereby the paternal grandparents could spend face to face time with the children for four hours on the fourth Sunday of each month.[7] However, on reading the redacted transcripts of the phone calls between the father in prison and the paternal grandparents, and between the father and the children, both the mother and the Independent Children’s Lawyer withdrew from those orders sought and proposed no time spent with between the children and the paternal grandparents. Additionally, the Independent Children’s Lawyer and the mother proposed there be no telephone communication between the father and the children. Neither of those parties in this de novo hearing sought anything other than affirmation of the orders made by Senior Registrar Fitzgibbon.
[7] Further Amended Response to Initiating Application filed by the mother on 3 October 2019, page 2.
Tendered into evidence at the hearing before Senior Registrar Fitzgibbon were the transcripts, redacted by the paternal grandparents, of phone calls had between the father and the paternal grandparents and the father and the children as described above. The father made a claim of privilege in respect of the admitting into evidence of the transcripts and provided written submissions dated 2 December 2019, being a date after the hearing before the Senior Registrar. In submissions before the Court in this proceeding, the father claimed the transcripts as privileged, and asserted that claim for both himself and the paternal grandparents, saying that what was discussed between them was privileged “…in a similar way that professional privilege exists between a lawyer and their client.”[8] The paternal grandparents are not lawyers. The father described the paternal grandparents as his “conduit for legal advice…” and “power of attorney…”[9] The conversations had by them did not go to the provision of legal advice.
[8] Transcript of proceedings dated 26 June 2020, page 15 lines 35-40.
[9] Transcript of proceedings dated 26 June 2020, page 15 lines 30-40.
Both the father and the paternal grandparents knew that their conversations were being recorded. Those calls were occurring as a result of order 12 of the orders made by Judge Stewart in the Federal Circuit Court on 16 November 2018. That order, and in particular, its notation, is set out below:-
12The Husband may communicate with the children by telephone as follows:
12.1On one occasion each third weekend as follows:
12.1.1For a period to exceed not more than 12 minutes for each child, provided that the totality of such calls occur within a 60 minute period on each occasion;
12.1.2Such calls take place whilst the children are spending time with the 2nd Respondents pursuant to these Orders;
12.1.3The telephone call(s) shall occur when the children are spending time with the 2nd Respondents pursuant to Order 7 hereof;
with the Husband to instigate such calls, IT BEING NOTED THAT the calls will be monitored and recorded by the Victorian Department of Corrections.
In any event, the paternal grandparents did not argue that privilege attached to recordings and/or the transcripts and indeed relied on that evidence which they placed before the Court and in relation to which they made submissions. The father did not oppose that course taken by the paternal grandparents. Otherwise, the father’s conversations with the children are clearly not privileged communications and the Court considers adducing this evidence in the best interests of the children.[10]
[10]Family Law Act 1975 (Cth) s 69ZX(4).
Upon the hearing of the review applications, the mother had in her possession a redacted copy of the transcripts. The Independent Children’s Lawyer had both a redacted and un-redacted copy of the transcripts, as did the father. Both the mother and the Independent Children’s Lawyer were content to proceed on having placed in evidence only those parts of the transcripts that were not redacted leaving for another day pursuit of the redacted parts. Counsel for the mother argued that any claim for privilege, if it exists, must concern only the parts of the transcripts redacted by the paternal grandparents. The Court agrees with this given the contents of the preceding paragraph.
The children live with their mother and spend no face to face time with their father. They currently have no telephone communication with their father.
The father sought, on the hearing of the review applications, limited orders. He sought that the children be able to visit him at the prison and proposed that the maternal grandparents would facilitate the transportation of the children to enable that to occur. He further sought an order for regular telephone communication with the children and proposed that occur each Sunday, where one week the children would be with the mother and the other with the paternal grandparents, as well as telephone communication on the children’s birthdays and upon request to either the mother or the paternal grandparents.[11] He sought an ability to write to the children at large and have them acknowledge his correspondence by writing to him, facilitated by someone. He sought a non-denigration order against the mother.
[11] Outline of case filed by the father on 4 December 2019, page 13.
The paternal grandparents sought, in particular, orders that the children spend regular face to face time with them being every third weekend from 9.00am on Saturday until 6.00pm on Sunday together with one week during each of the school holidays and for two weeks during the Christmas/Summer holidays. They sought a non-denigration order against the mother.
Importantly, whilst before Senior Registrar Fitzgibbon in October 2019, the paternal grandparents indicated their consent to transporting the children to and from the prison where the father is incarcerated, for the purpose of facilitating time spend with between the children and their father, on the review application they no longer consented to any such order as proposed by the father and indicated their clear objection to undertaking that task. Additional to their refusal to co-operate with the father in that regard, they also indicated that they were not prepared to facilitate any telephone calls made by the father to the children whilst the children were in their care or at all. This also was a shift away from their earlier position, adopted before the Senior Registrar, which was that they were prepared to facilitate and supervise, if necessary, any such calls.
The change in position of the paternal grandparents occurs as they perceive themselves having no ability to spend time with the children unless they make clear to the mother, the Independent Children’s Lawyer and the Court that they are not closely aligned with the father, and are not blaming of, and/or critical of, the mother. In particular, they acknowledge that the transcripts on occasion do not paint them in a good light. Comments as to the inability of the Family Court, which they claim has a bias in favour of women, to detect lies given in evidence by a witness are very concerning, as is, in particular, the paternal grandfather’s reply to the father that he “would find it very hard” to feel sorry for the mother (when asked whether he felt sorry for the mother) “after the incident.”[12] At the time of this exchange, I do note that the father was pleading not guilty to the charges laid against him, and lying to his parents about what had occurred. It is difficult, however, to see how the paternal grandparents could spend time with the children on an interim basis, in these circumstances. I accept that other parts of the transcripts show the paternal grandfather seeking to re-direct the father’s comments, with the paternal grandfather saying to his son in one instance, “…talk in the interest of the boys, don’t attack [the mother]”[13] and in another, “[w]hen you talk to the boys be careful not to talk about anything about the case or anything emanating from the case”[14] and “[b]e careful of the other stuff.”[15] On another occasion, the paternal grandfather asked the father whether the father had told the children or any of them that their mother “would be devastated” if they had to (impliedly, by Court order) return to Town A. The father responded he had. The paternal grandfather told him “that was probably a [bit] close to the wind, that one.”[16]
[12] Transcript of telephone conversations, entry for 28 April 2019 commencing 13.39, page 201.
[13] Transcript of telephone conversations, entry for 3 February 2019 commencing 8.41, page 155.
[14] Ibid entry for 11 January 2019 commencing 13.29, page 72.
[15] Ibid entry for 3 February 2019 commencing 8.41, page 72.
[16] Ibid entry for 24 February 2019 commencing 11.58, page 28.
Prior to the separation of the father and mother in November 2016, the children spent considerable periods of time in the care of and/or presence of the paternal grandparents. They had a loving relationship with them. Following separation, because the father lived with the paternal grandparents, the children were in the household of the paternal grandparents on a week about basis. Following the July 2018 serious assault of the father upon the mother, the children no longer spent that regular time with the paternal grandparents. In November 2018, they recommenced spending time with the paternal grandparents each third weekend. That ceased by virtue of the orders made by Senior Registrar Fitzgibbon in October 2019.
The paternal grandparents have not seen nor spoken to the children since 13 October 2019 as a consequence of the operation of Senior Registrar Fitzgibbon’s orders.
Neither the mother nor the Independent Children’s Lawyer can now contemplate orders wherein the children spend any time with nor have communication with the paternal grandparents beyond that ordered by Senior Registrar Fitzgibbon in October 2019. The reason for that was the discovery by both of those parties of the content of the transcripts.

Family consultant and the paternal grandparents

The mother had, in November 2018, consented to the father having some telephone communication with the children. Paragraphs 49 and 50 of Judge Stewart’s Reasons for Judgment delivered in the Federal Circuit Court on 15 November 2018 made reference to this. Those parts of Her Honour’s judgment are as follows:-
49.There is a proposal in this case, and it is with the consent of the Mother, that the Father have some telephone communication with the children facilitated by the Paternal Grandparents. I pause here to note that this should be undertaken with great care, and the Father should be very careful not to overly involve the children in what has happened. In my view, these children continue to be exposed to the consequent repercussions of family violence, and that also falls within the definition of family violence in section 4AB of the Act. There should be a real attempt not to continue to embroil them.
50.I expressed reservations yesterday that I thought that the Father would struggle with that and I still do. He involved the children with the breakdown of the marriage as I have set out in detail in my reasons of 15 November 2017, and I think that given his lack of insight, he will struggle not to continue to involve them in the conflict. However, on balance, I think the children should have some telephone communication with the Father, and he should try very hard not to continue to involve them save to merely to reassure the children that he is okay. Jail for children is probably a scary concept, and I think that the children are probably very worried about him notwithstanding what has happened to the Mother. I would hope that the telephone calls go at least some way to reassuring the children that the Father is okay, and that will be to their benefit.

The telephone communication had between the father and the children occurred in the presence of the paternal grandparents and at a time when the father both had indicated he would plead not guilty to the charges but then also at a time following his guilty plea. As referred to previously in these reasons, the paternal grandparents did not always act protectively towards the children and in those instances did not advance the children’s best interests. Nor did the father always do so, as is evidenced by the transcripts of phone calls. The father spoke encouragingly to the children of a return of their residence to Town A, noting their mother would be devastated by that scenario. He encouraged the children to visit him in jail, despite his knowledge of the mother’s opposition to this. It was also in the context of him indicating to the paternal grandfather as to any possible visit to him by the children, “… I’m not too fussed on it to be perfectly honest.”[17] The transcript evidence highlights the support of the father by the paternal grandparents, who had no regard to the impact upon the mother of the significant violence perpetrated upon her by the father, and the further impact upon her of ongoing litigation. Rather, the children were drawn, on occasion, into a managed, and possibly oppressive situation, where they were required to express favourable views concerning their father, and express views as to seeing him.
[17] Transcript of telephone conversations, entry for 13 January 2019 commencing 9.06, page 111.
The paternal grandparents continue to deny any minimisation by them of the family violence perpetrated upon the mother by the father. The family consultant, Ms R, who prepared the Child Inclusive Conference Memorandum dated 8 May 2019, noted her assessment of the paternal grandparents as being that they did so minimise such violence:-
At interview, [the paternal grandparents] minimised the family violence perpetrated by [the father] and denied the allegations of controlling behaviour against them. [The paternal grandparents] appeared primarily concerned with their son’s safety whilst he was incarcerated and attributed further blame on [the mother] for his three applications for bail being refused.[18]
[18] Child Inclusive Conference Memorandum of Ms R dated 8 May 2019, page 2.
Ms R also noted, at that time, the children wished to spend more time with their grandparents and X and Z expressed a desire to see their father in prison.[19] I again note that this was at a time prior to the father’s guilty plea and prior to his sentencing.
[19] Ibid page 4.
Ms R identified the following under the heading ‘future directions’:-
The children to remain living primarily with their mother.
Mr G Meadis & Ms H Meadis’s minimisation of the family violence as perpetrated by their son against Ms Meadis is very concerning given the high level of risk involved. Their position of diminishing Mr Meadis’s behaviour whilst also attempting to facilitate the children’s access to him in prison could be having a further detrimental impact on the children’s emotional wellbeing. Mr G Meadis & Ms H Meadis appear to believe that they are acting on behalf of their son in attempting to obtain more time with the children. It is possible that Mr Meadis is continuing to exert his control over Ms Meadis via his parents which must end for the children’s sake. The children need stability and security and require time to settle into their new environment following the trauma they have experienced. In light of this, consideration to be given to a significant reduction in Mr G Meadis & Ms H Meadis’s spend time arrangements with the children. This could include daytime visits only once per month in the children’s local area.
Due to the high level of trauma that the children have been exposed to in witnessing the alleged family violence incident that led to their father’s incarceration, consideration given to weighing up the benefits of such against the potential for further destabilisation of the children..
Y would benefit from a re-referral to counselling however, he is reluctant and Ms Meadis expressed financial concern in interview. It is possible for Y to access low cost counselling via Q Services, City J … .
The Court would benefit from obtaining a copy of Victorian Police records.
Consideration to be given to this memorandum being released to professionals involved supporting the family.

The father

The father submitted, in respect of the paternal grandparents’ application, “[i]t’s important that the necessity of the relationship with the paternal family takes precedence over the convenience that the mother formally requires.”[20] There is, of course, no “necessity” to advance the relationship between the paternal grandparents and the children. The mother has never spoken of her “convenience”. Her focus has been, and continues to be, on the advancement of the best interests of the children. That advancement may require the children to spend time with the father and/or the paternal grandparents, or it may not. Given the evidence before the Court, the father lacks insight as to this matter.
[20] Transcript of proceedings dated 26 June 2020, page 40 lines 25-30.
The father’s evidence is that the children have a strong relationship with him, and he with them, and that they desire to see him. The father submitted the children were “showing signs of not coping”[21] in respect of their move in residence away from Town A and their familiar networks, in particular the extended paternal family. The father submitted the child Y suffers from anxiety and needed counselling and that he was a child who is “angry and resentful at this situation”[22] – that “situation” being his inability to see neither his father nor his paternal grandparents. The father’s evidence is that X’s special needs are not being met. The father is significantly critical of the mother, claiming she denigrates both himself and the paternal family to the children, and he seeks, as he has done before, a non-denigration order. The making of such an order was refused by the Court on 9 October 2019.
[21] Ibid page 31 lines 20-25.
[22] Ibid page 31 lines 25-30.
The father’s evidence and submissions contained ongoing criticism of the mother and allocation of blame to her for his predicament, including the extraordinary step taken by him in October 2019, in seeking an ex parte intervention order against her. The father confirmed at the hearing of this review application, that he is proceeding with that matter, seeking a final order. His lack of insight is breathtaking and very concerning. That concern arises in particular because actions such as the seeking of the intervention order on the grounds alleged are an ongoing harassment of, targeting of, and obsession with the mother, who is already fearful for her ongoing safety.
At the hearing, the father submitted the following:-
… Under section 60CF, I’m also obliged to inform the court that in October [2019], I sought and obtained an interim family violence order against the mother. The order primarily prohibits the mother from committing family violence against the children and myself, and from making contact with me. The IVO is granted on the basis that I allege that Ms Meadis has historically been a perpetrator of family violence. This has been established through previous decision of the Family Court and through third party documentation that has been gathered. This included incidents directly involving the children and financial abuse, as detailed in my affidavit. Section 60CG requires the court to consider the risk of family violence in this situation.[23]
[23] Ibid page 32 lines 15-30.
The “previous decision of the Family Court” referred to by the father above is the Reasons for Judgment of Judge Stewart delivered on 21 December 2017. That decision was in relation to the mother’s then application to relocate with the children from Town A to the City J region and related interim parenting arrangements. The father refers to this decision in his affidavit evidence about the mother perpetrating family violence upon him and the children.[24] The relevant passages of Her Honour’s judgment are as follows:-[25]
74.I also note that in my view, the Wife has also inflicted family violence on the Husband. I refer particularly to the incident at a community group, when it is apparent, although initially put by the Wife as an issue that the Husband should be criticised for, that the Wife was verbally abusive towards him at a community group meeting at which X was participating in during the Wife’s week with him.
75.In fact, although not disclosed by the Wife, it is abundantly clear that when the Husband arrived at the community group meeting, the Wife then left the venue at first instance. The Wife then had some sort of telephone conversation with the maternal grandmother, who told her to be assertive, and she then returned to the community group meeting with the particular intent of asserting herself to the Husband.
76.The Wife shouted at the Husband in front of numerous other people, and attempted to move to within 10 metres of him, which would have put him in a position where he was in breach of the intervention order. The Husband asserts that at this point he quickly retreated. I accept the Husband’s evidence as set out in his affidavit with respect to that particular instance.
77.This does not strike me as the behaviour of someone who is necessarily fearful of the Husband, although I note with caution that I fully recognise that fearfulness and assertiveness are not necessarily mutually exclusive propositions.
[24] Affidavit sworn by Mr Meadis on 28 August 2019, paragraphs 28-39.
[25]Meadis & Meadis [2017] FCCA 3358 [74]-[77].
It seems extraordinary that the father could obtain an intervention order against the mother in the circumstances of this case. The order he obtained was in the Magistrate’s Court in October 2019 and was, notably, an ex parte order. It was obtained whilst the father was, as he remains, in prison. It remains operational and the application is to be heard, with the mother having now been afforded procedural fairness, on 21 July 2020. The evidence upon which the interim intervention order was made was the father’s allegations of family violence perpetrated by the mother against the father and the children, and his further allegations of financial abuse by the mother against the father. The allegations of the father as to family violence are a continuation of his assertions that the mother historically is a perpetrator of family violence, as set out in the Notice of Child Abuse filed by him on 2 September 2019 and the Notice of Risk filed by him in the Federal Circuit Court on 2 December 2016, and first dealt with by the Federal Circuit Court in 2017. Counsel for the mother submits that the father has been requested by the presiding Magistrate to withdraw his application. Whether the request has been made or not, the father has not withdrawn that application for intervention order and intends to proceed with it additional to the raft of litigation that is consuming the Court’s resources. It is further submitted by Counsel for the mother (and the father does not necessarily disagree) that the father has requested of the police that they prosecute the mother for a breach of the (ex parte) interim intervention order because financial matters as between the parties remain outstanding and are ongoing in the Court (as described in paragraph 32 above). That situation is claimed by the father to be one of financial abuse directed toward him by the mother.
The factual circumstances of the father’s offending against the mother are before the Court in evidence in a number of exhibits to the affidavit of the mother sworn on 3 October 2019. The nature of that offending is clearly relevant to these proceedings. It is set out in the judgment of the County Court of Victoria being reasons for sentence in 2019.
(sentencing reasons omitted to comply with s 121)
His Honour went on to find that the father had “a lack of significant remorse.” He noted the version of events given by the father to Mr M, psychologist, who prepared a report for the sentencing (and upon which the father relied in his affidavit material)

Psychological assessment of the mother

The affidavit evidence of Ms O, forensic psychologist, was evidence going to the mother’s parental capacity in circumstances where the children may have ongoing contact with the father, including face to face time in the prison, and where they would spend ongoing and increased or the same time with the paternal grandparents as was occurring pursuant to the orders made in November 2018. The mother was diagnosed as suffering from post-traumatic stress disorder (‘PSTD’) following the serious assault perpetrated upon her by the father in July 2018. Ms O recommended a reduction in time between the children and the paternal grandparents in so far as it “will likely assist [the mother] psychologically.”[26] The mother’s mental health was seriously compromised by the children communicating with the father. Despite this, the mother was endeavouring to cope with her mental health difficulties and accommodate some level of supervised (by her) communication between the children and the father, set out in her affidavit material. That endeavour was not continued once she had viewed the (redacted) transcripts.
[26] Affidavit of Ms O sworn 2 October 2019, Exhibit “H-3”, page 17.
In the mother’s interview with Ms O, she advised the children were difficult to manage upon returning home after their weekends with the paternal grandparents, as well as presenting with oppositional and defiant behaviours towards her and Mr F, the mother’s partner. The mother believed that the father and the paternal grandparents “denigrate her and undermine her parenting in the presence of the children and fail to accept the children’s positive relation with Mr F.”[27]
[27] Ibid paragraph 9.
The mother also advised Ms O that she was fearful of the paternal grandparents seeking retribution on behalf of the father, and she did not want to live near them, where she would feel unsafe.[28]
[28] Ibid paragraph 10.
In relation to the children’s relationship with the father and paternal grandparents, Ms O reported the mother saying the following:-
[The mother] acknowledged the children enjoyed spending time with their paternal grandparents where they were spoilt. She advised the children had limited information about the current situation with their father. She indicated she has made all attempts to remain impartial and allow the children an opportunity to have a relationship with their father and his family. She reported the children love their father but continue to be confused by his actions and behaviours towards their mother.[29]
[29] Ibid paragraph 11.
The mother identified the main “trigger of stress”[30] for her as receiving Court material from the father or having communication with and/or seeing the paternal grandparents. She “continues to feel anxious about [the father] seeking retribution.”[31] Ms H reported that the mother’s responses during the interview indicated:-
…she is experiencing specific fears and anxiety and significant symptoms of traumatic stress. [The mother’s] profile indicates she continues to experience distress and recurrent episodes of anxiety in relation to this traumatic event.[32]
[30] Ibid paragraph 28.
[31] Ibid paragraph 28.
[32] Ibid paragraph 32.
Ms H identified the mother’s parenting needs as related to her emotional and mental health issues (PTSD, anxiety and depression) as a consequence of the family violence experienced by her during the relationship of the mother and the father, and the traumatic experience where she was a victim of a serious assault perpetrated by the father.[33] The mother was also identified as having “…high strengths that negate some of the needs, such as, adequate housing, employment, high availability of support and strong interpersonal skills.”[34]
[33] Ibid paragraph 36.
[34] Ibid paragraph 37.
Ms H generally concluded that, whilst the mother’s entire parenting capacity cannot be assessed, she “…appeared to be child focused and not unduly critical of [the father].”[35] Ms H also said:-
There was no evidence provided at this assessment that [the mother’s] mental health and emotional wellbeing impact on her capacity to parent. [The mother] is considered resourceful and has sought professional support when required in the past and was willing to seek future treatment.[36]
[35] Ibid paragraph 40.
[36] Ibid.
In relation to future parenting arrangements, the mother’s position, as reported by Ms H, was as follows:-
[The mother] did not want to cease all contact between the children and their father and paternal family, however she sought to restrict this time. This was particularly due to her concerns about negative influence on the children and the difficulty in parenting the children after spending time with the paternal family.[37]
[37] Ibid paragraph 41.
Ms H’s then recommendations were those as set out in paragraph 75 above and, more broadly, that the mother seek counselling for her ongoing symptoms of PTSD; that a family report may assist in further determining the mother’s parenting capacity with specific questions as to (obviously involuntary) relocation to Town A; face to face time between the children and the father; and a change in the current time spent with arrangements between the children and the paternal grandparents.
The father’s response to the psychological evidence of the expert Ms H was to submit that the recommendations of the expert “must be regarded with some scepticism…”[38] The father pointed to the expert finding that some of the mother’s responses in the ‘Personality Assessment Inventory’ (‘PAI’) testing, which indicated “…she was satisfied with herself and sees little need for change in her behaviour”[39] and other responses of “above average, honest but self-inflated descriptions” of herself, under the Paulhus Deception Scale (‘PDS’) testing, meant the mother’s responses could not be considered genuine.[40] These matters, however, did not adversely impact the ultimate findings and diagnosis of the expert as to the mother’s mental health functioning and parenting capacity as described from paragraph 75 and onward.
[38] Transcript of proceedings dated 26 June 2020, page 40 lines 5-10.
[39] Affidavit of Ms O sworn 2 October 2019, Exhibit “H-3”, paragraph 35.
[40] Ibid page 12.

Conclusion

Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) provides that:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act provides relevantly:-
Determining the child’s best interests
(1)… in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
…
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
…
Section 60CC(3) of the Act provides additional considerations further to the primary considerations as stated above.
There is in this proceeding the primary consideration at the forefront, as set out in s 60CC(2)(b) of the Act, being the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The children have, on the mother’s evidence, expressed no wish to attend at the prison to see the father. The paternal grandparents are not prepared to facilitate same. The mother and the Independent Children’s Lawyer oppose any such order.

The father desires for there to be telephone communication and unlimited written communication with an acknowledgment by the children. The mother and the Independent Children’s Lawyer oppose such orders. The paternal grandparents do not want to be involved in any way in the operation of such orders were they to be made.
The paternal grandparents seek weekend and holiday face to face time with the children which the father supports. The mother and the Independent Children’s Lawyer opposed such orders. The father and the paternal grandparents want a non-denigration order against the mother. The mother and the Independent Children’s Lawyer oppose that order and argue there is no basis for same. That is correct. There is indeed no evidentiary support for the making of any such order and the Court shall not make any such order.
The mother will continue to have interim sole parental responsibility of the children. She solely financially supports them and needs to be employed each day of the week to do so. Weekends are time for she and her partner, Mr F, to spend time with, and care for, the children, allowing them to participate in their regular sporting and other community activities. The mother’s parents and her two sisters are in the area to which the mother has relocated and the children enjoy the company of the extended maternal family. The children are settled and supported in the environment the mother has created for them after what was, for them, a highly distressing and confusing period of loss, re-adjustment and no doubt ongoing sadness in respect of the father’s assault upon their mother.
The paternal grandparents have not had a recent opportunity to engage inappropriately with the children. They are apologetic and indicate they will not do so hereafter. The mother does not trust them. They have historically shown poor insight into her position. The children’s best interests are not served by granting orders as sought by the father and the paternal grandparents on an interim basis. The evidence overwhelmingly supports a dismissal of the applications for review. The costs orders made by Senior Registrar Fitzgibbon on 13 November 2019 shall be affirmed.
No party placed any further material before the Court as to the question of costs. That which is before the Court was that which was before Senior Registrar Fitzgibbon as referred to in his Reasons for Judgment (costs) of 13 November 2019. The quantum sought by the mother is reasonable. The awarding of costs is a discretionary exercise of the Court. The relevant legislation is, in particular, s 117(2A) of the Act which guides the exercise of that discretion. The matters of material relied upon and statements of fact are as set out in the Senior Registrar’s judgment. The father and the paternal grandparents sought a further interim hearing in October 2019 in relation to which they were unsuccessful and on a re-hearing are again unsuccessful. Their conduct has caused unnecessary costs to be incurred by the mother who has limited financial ability.
The paternal grandparents sought that, pursuant to s 62G(5) of the Act, a family report be prepared in this matter. That is a proposal with which I agree as does the Independent Children’s Lawyer. However, making such an order at this time is premature. The matter is still to enter a judicial docket. Outstanding interim applications remain. It is a pity the review applications were proceeded with when last year the parties were offered a listing of the matter for trial. Surely a better and more cost effective way forward.
The mother has sought the father pay her costs of his review application and on an indemnity basis. She may also seek that the paternal grandparents contribute to such costs, they having filed their application out of time, and therefore after the mother’s Response to an Application in a Case was filed.
The mother is at liberty to, within 28 days hereof, notify the other parties and Chambers of any application by her for the paternal grandparents to pay her costs or part thereof. The Court shall thereupon make orders as to the filing of submissions in respect of the mother’s costs application/s.

I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 16 July 2020.

Associate:

Date: 16 July 2020

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE File No. (P)MLC11834/2016

BETWEEN

MR MEADIS

(Applicant husband)

AND

MS MEADIS

(First Respondent wife)

AND

MR G MEADIS

(Second Respondent paternal grandfather)

AND

MS H MEADIS

(Third Respondent paternal grandmother)

AND

INDEPENDENT CHILDREN'S LAWYER

BEFORE SENIOR REGISTRAR FITZGIBBON FOR JUDGMENT
21 October 2019

This application coming on before this Court AND UPON HEARING the Applicant husband in person by telephone, Mrs Cox for the Respondent wife by telephone, Ms Flynn for the Second and Third Respondent paternal grandparents by telephone, and Ms Bowman for the Independent Children’s Lawyer by telephone

IT IS ORDERED

That Orders 3, 6, 7, 8, 9.2, 12 and 13 made on 16 November 2018 (copy attached) be discharged.

IT IS ORDERED UNTIL FURTHER ORDER

That:

(a)the wife have sole parental responsibility with the respect of the children X, male, born in 2006, Y, male, born in 2008 and Z, male, born in 2010 (“the children”);
(b)in exercising sole parental responsibility, the wife is to first communicate with the Independent Children's Lawyer (“ICL”) about any proposed decision to be made and/or receive confirmation from the ICL of their support or not for such decision;
(c)the wife through her solicitors keep the husband informed of any decisions made and the husband is thereafter at liberty to inform the paternal grandparents of them; and
(d)in the event that there is not support in full from the ICL, then she may rely on liberty to apply as provided in Order 11 herein.

That the wife, through the ICL, provide each quarter to the husband and paternal grandparents a current photograph/s of each of the boys and provide additional information to that ordered in Order 9.1 made 16 November 2018 about any other matter in her discretion.
That each of the husband and paternal grandparents may at Christmas, Easter and each of the children’s birthdays send to the children or any of them gifts, cards or letters (in hard copy), to be first sent to the ICL for her to determine at her sole discretion whether such items are to be on forwarded to the wife, and in the event that the ICL forwards such items to the wife, the wife shall pass such items on to the children and advise the ICL that she has done so.
That the issue of the children spending face-to-face time or communication other than as provided in these orders with the husband and paternal grandparents be reserved.
That:

(a)the Second and Third Respondents’ solicitors comply with Order 4 made 9 October 2019 by providing to the husband and the ICL un-redacted and clean copies of the transcript together by 25 October 2019; and
(b)the husband and Second and Third Respondents, who may do so on his behalf, send to the ICL details of all and any claims for privilege with respect to the transcript and do so by reference to date of telephone call, page and/or paragraph numbers and the basis for the claim.

That the Application and Response seeking final orders be placed in the list of cases awaiting allocation to a judicial docket with priority as and from 17 October 2019.
That the following interim and interlocutory applications be listed for mention before Acting Senior Registrar Field on 28 November 2019 at 2.15pm to determine further listing and such other orders and directions for them as may be necessary in the circumstances, and may be by telephone:

(a)the wife’s application for security of costs/litigation funding by the husband; and
(b)the husband’s application for enforcement of/compliance with the final orders as to property settlement and distribution of funds;
(c)any claims for privilege arising from Order 4 made 9 October 2019 and referred in Order 6 herein; and
(d)costs per order 9 if not determined prior.

That:

(a)leave is given to the wife to make application for her costs of and incidental to the hearing and determination of these applications by the husband; and
(b)the wife, by no later than noon on Thursday 24 November 2019 prepare in bullet point form a document setting out the precise orders she seeks and the matters in support by reference to s.117 ad s117(2A) of the Family Law Act 1975 and Chapter 19 of the Family Law Rules (2004); and
(c)the husband and Second and Third Respondents (in the event that costs is sought by the wife against them) prepare a response setting out with precision the orders sought and the matters in response to those required under s.117 and 117(2A) of the Family Law Act 1975 and Chapter 19 of the Family Law Rules 2004, and file and serve it upon the wife and ICL by no later than 31 October 2019; and
(d)the wife have right of reply to the submissions set by and on behalf of the husband and Second and Third Respondents and do so by no later than noon on 7 November 2019; and thereafter
(e)if practicable, the Senior Registrar determine the matter in Chambers but in the event that for whatever reason it is not practicable then it be referred to the Acting Senior Registrar as one of the matters to be considered by her on 28 November 2019.

That there by liberty to apply by filing an Application in a Case.
That a true or sealed copy of these orders or extract may be provided by the ICL and wife to any government or non-government agency, including but not limited treating health professionals, Centrelink and schools at which the children are enrolled, which may require them as proof of her authority pursuant to these Orders NOTING Order 15 made 16 November 2018.
That for the purpose of the parties, excepting the husband, attending by telephone the dial in details to attend the telephone mention are as follows:

(a)Please dial 1800 …. You will be prompted to enter a passcode. At that time please dial … (press # once you have put in this code);
(b)At that time you will enter the conference and hear music until such time as the Senior Registrar’s Court Officer connects you to the mention. Please be patient until connected to the conference as the Senior Registrar may be dealing with another matter at the same time; and
(c)If you enter the conference and hear proceedings in progress please wait quietly until your matter is announced.

That pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.

IT IS DIRECTED

That a true copy of these orders made 16 November 2018 be attached to these Orders.
That the reasons for judgment of this day be transcribed and expedited, sent to the parties and placed on the file.
That upon the expiration of the appeal period, the Melbourne Registry of this Court arrange for the return of County Court file CR… and Supreme Court file SCR … to the respective registries of those Courts.