Meadis & Meadis
[2022] FedCFamC1F 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meadis & Meadis [2022] FedCFamC1F 62
File number(s): MLC 11834 of 2016 Judgment of: BENNETT J Date of judgment: 24 January 2022 Catchwords: FAMILY LAW – PARENTING – first day of trial – where the father who has been convicted of assaulting the mother after pleading guilty and having served his period of incarceration gives a contradictory explanation of the assault – where father now alleges that the mother staged the assault, that he was innocent and that it is in the best interests of the children that they live with him.
FAMILY LAW – PARENTING – where family report writer is not to require children to meet the paternal family members for the purpose of the family report assessment without further order of the court.
FAMILY LAW – PRACTICE & PROCEDURE – where father seeks domestic violence/intervention order against the mother in state court based on his allegations that the mother has been financially abusive of him – where it is in order for parties to the proceedings in the state courts to rely of orders and reasons for decision from these proceedings – where court will facilitate delivery of documents to the state court for that purpose.
Legislation: Family Law Act 1975(Cth) Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 24 January 2022 Place: Melbourne (heard via MS Teams) Counsel for the Respondents: Mr Nicholson Solicitor for the Respondents: Harris Lieberman Solicitors Pty Ltd Counsel for the Second Respondent: Mr G Meadis in person Counsel for the Applicant: Mr Meadis in person Counsel for the Third Respondent: Ms H Meadis in person Counsel for the Independent Children’s Lawyer: Mr McLeod Solicitor for the Independent Children’s Lawyer: Joliman Lawyers ORDERS
MLC 11834 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: Mr Meadis
Applicant
AND: Ms Meadis
First Respondent
Mr G Meadis
Second Respondent
Ms H Meadis
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1.The requirements of s 102NA (2) of the Family Law Act 1975 will apply to this proceedings.
2.The mother and the father make application to Victoria Legal Aid for funding pursuant to s 102NA (2) for the final hearing of this matter which is due to commence on 20 September 2022.
3.Liberty be reserved to the paternal grandparents, of either of them, to make application for funding pursuant to s 102NA (2) for the final hearing of this matter or as they may be advised AND IT IS NOTED that Victoria Legal Aid require not less than six weeks to consider any such application.
4.That the literature published by the Court, being Document 4 (Family Violence Information Sheet) and Document 5 (Family Violence – Personal Cross-examination Ban) be annexed to this Order.
5.That this matter be fixed for final hearing before me on 20 September 2022 estimated to take 5 to 8 days (“the final hearing”) and include any outstanding issues as to enforcement of financial orders, costs and applications for costs.
6.Henceforth, the respondent mother be referred to by the family name “F” and the records of the Court be changed to that effect.
7.Within 7 days the applicant father file an Amended Application Initiating Proceedings in which he sets out with specificity the final orders sought by him in these proceedings.
8.Within 7 days of compliance by the father with paragraph 7 of this Order the paternal grandparents make file and serve a Response to the Amended Initiating Application setting out precisely what parenting orders they seek be made at the final hearing of these parenting proceedings.
9.The respondent mother and the independent children’s lawyer file and serve any Response to the other parties’ Amended application or Response in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
10.I dispense with compliance by the mother with the Rules in relation to a formal application and an affidavit in support so as to enable the mother to make an oral application for an order that she be able to rely on the affidavit of Ms O as evidence of other than a single expert witness at the final hearing.
11.I permit the mother to rely on the evidence of Ms O subject to the following:-
(a)The father and the paternal grandparents each have liberty to require the mother to submit to examination by one other appropriately qualified person as to her mental health and the implications of orders being made in these proceedings whereby the children X born in 2006, Y born in 2008 and Z born in 2010, have an ongoing face to face relationship or communication with the father and/or paternal grandparents.
(b)In the event that the father and / or the paternal grandparent seek to obtain their own expert evidence in relation to the mother’s mental health he/she be liable for the costs associated with same, subject to any further order of this court.
(c)There be general liberty to apply in relation to the above expert evidence.
12.Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared. For that purpose the parties and children X born in 2006, Y born in 2008 and Z born in 2010 attend upon a Child Court Expert nominated by the Director of Court Children’s Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant. Such report to be commenced not before 1 July 2022 and be released by not later than 15 August 2022 AND IT IS NOTED THAT an earlier Child Inclusive Conference Report has been prepared by Ms R in 2019.
13.AND IT IS REQUESTED that the Director of Court Children’s Services Victoria give consideration to allocating the report in this matter as two s62G(2) reports having regard to the number of applications, the nature of the applications and the breadth of the matters in dispute.
14.Subject to further order of the Court, an observation by the Court Child Expert family report writer of the relationship between the children and any of them and the party to the proceedings with whom the children do not have face to face contact be a matter within the sole discretion of the Court Child Expert.
15.IT IS REQUESTED that the Court Child Expert interview the current partners of the mother and the father provided that it is the responsibility of the mother to secure the attendance of her husband for any such assessment and the responsibility of the father to secure the attendance of Ms W for any such assessment.
16.I reserve liberty to the parties, including the independent children’s lawyer, to make application on short notice for an order requiring an observation between the children (or any of them) and himself or herself by the Court Child Expert after the release of the family report NOTING THAT such application will have to be made urgently to avoid any adjournment of the final hearing.
17.Not later than 4.00 pm on 31 January 2022 the parties provide their contact telephone numbers and email addresses to …mailto:
18.The family report deal with the following matters in relation to the then pending applications of the mother and father and the paternal grandparents for parenting orders:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;
(b)the matters set out in s60CC of the Family Law Act;
(c)an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;
(d)the extent to which any diagnosis of X as being on the Autistic Spectrum bears on the family report writer’s assessment;
(e)recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the child/ren’s best interest to the greatest extent possible; and
(f)the suitability of this matter for mediation following publication of the report.
19.For the avoidance of doubt, the Child Court Expert be and is hereby authorized to have reference to:-
(a)a transcript of today’s proceedings;
(b)any documents filed in these proceedings;
(c)any documents produced on subpoenae and released for inspection by all parties;
(d)any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided; and
(e)any documents or things referred to in this Order.
20.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
21.Unless a party objects in writing within 4 clear days of the date of release of the family report, a copy of the family report may further be provided to the following:
(a)a Children’s Court and/or state Magistrates’ court;
(b)a child protection authority;
(c)a medical or allied health professional who is treating a party to the proceedings provided that the other parties are provided with not less than 4 clear days prior notice and details of the proposed recipient in writing;
(d)an expert who a party propose give evidence in his or her case provided that each other party to the proceedings is provided with not less than 4 clear days prior notice and details of the proposed expert in writing;
(e)a State or Territory legal aid authority; and
(f)a convener of any legal dispute resolution conference.
22.Unless otherwise permitted by order of this court to do so, no person release the family report, or provide access to the family report to any other person.
23.The parties prepare an Electronic Court Book using EBrief Ready AND IT IS DIRECTED that for this purpose my Legal Associate provide the template of the Electronic Court Book to the solicitors for the parties who are legally represented.
24.I reserve the issue of whether the trial will proceed electronically or face to face NOTING THAT the mother proposes that she be able to participate electronically.
25.I grant permission to the mother and father in these proceedings to tender in evidence in the Magistrates Court proceedings in the Crimes Family Violence jurisdiction the following documents:
(a)reasons for decision of Hartnett J dated 17 July 2020;
(b)reasons for decision of Senior Judicial Registrar Hoult of 22 September 2020;
(c)reasons for decision of the Full Court of the Family Court of Australia of 27 November 2020;
(d)reasons for decision of Her Honour Judge Stewart delivered on 21 December 2017 and 15 November 2018,; and
(e)the order made by Her Honour Judge Stewart on 14 January 2019 (being the final property order); and
(f)this Order.
26.For the avoidance of any doubt as to the accuracy of documents sought to be relied upon by the father and/or the mother in the said Magistrates Court IT IS DIRECTED that today my Associate send by electronic means the above mentioned reasons for decision and orders to the Registrar of the N City Magistrates’ Court under cover of correspondence which specifies that the relevant proceedings are listed for hearing in that Magistrates’ Court on 25 January 2022.
27.The proceedings this day be transcribed and when transcribed a copy be made available to the parties to the proceedings.
28.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
AND THE COURT NOTES THAT the father has indicated he will oppose any application by the mother to participate in the trial by electronic means but does not oppose the trial proceeding by electronic means if a face to face trial is not possible. The paternal grandparents do not oppose there being an electronic trial but do oppose the mother participating electronically if the trial is to be conducted on face to face basis.
AND THE COURT FURTHER NOTES THAT at today’s hearing the father denied having assaulted the mother as alleged on 24 July 2018 and, contrary to his plea of guilty and subsequent conviction for relevant offences, gave an explanation of which the mother, the paternal grandfather, paternal grandmother and the independent children’s lawyer each said they were not previously aware.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadis & Meadis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
Identifying the issues
As part of the first day of hearing, it is necessary to identify the issues and make a reasonable estimation of the time required to complete the hearing. The proceedings concern X who is nearly 16 years old. X has been diagnosed with high functioning autism, Y who is nearly 14 years old and Z who is 12 years old. Their interest are represented by an independent children’s lawyer, Justine Bowman. Today the mother is represented by Mr Nicholson of Counsel. The father is self-represented as are the paternal grandparents.
In preparing for today’s hearing, I was assisted by the informative reasons for decision of Judge Hartnett (as she then was) delivered on 16 July 2020 in [2020] FamCA 543 and the recent reasons for decision by Senior Judicial Registrar Hoult delivered on 22 September 2020.
The father has recently been released from a term of imprisonment imposed for his serious assault on the mother. Notwithstanding that he pleaded guilty to the criminal charges for which he was convicted, the father told me this morning that the assault was actually staged by the mother, he is innocent and that the children should be removed from the primary care of the mother and live with him, his partner and her children. The father has no time or communication with the children over and above being able to send them restricted correspondence. The paternal grandparents said that they had not heard the explanation of the assault given by the father today before today. The paternal grandmother believes the father’s explanation and says that he is a good person. The paternal grandfather was considerably more circumspect and equivocal, preferring to say that none other than the mother and father can ever know what transpired on the day of the assault.
I will order a transcript of the father’s description of events and direct that a copy of the transcript be made available to the parties. Otherwise these reasons explain why the family report writer will not be able to observe the children with the paternal family members without further order by me. These reasons also confirm that the parties may refer to orders and reasons for decision of this court and the Federal Circuit Court of Australia (as it was then known) at the upcoming hearing of the application by the father against the mother in the crimes family violence jurisdiction for an intervention order based on his complaint that the mother has been financially abusive towards him.
Family report assessment
In this matter, as part of my first day directions for final hearing, I give consideration to the assessment process for the family report.
A family report is ordered under Section 62G of the Family Law Act 1975 (“the Act”). A family report is prepared by a Court Child Expert, practicing under their appointment as a family consultant. A family report is an independent family assessment that assists the parties and the court to make decisions about the children. In preparing the report, the family consultant considers the children’s experiences and development, the family circumstances and other issues relevant to the case. A Court Child Expert makes recommendations for arrangements that will best meet the children’s future care, welfare and developmental needs.
The first matter that I will note is that this is an application as between the mother and the father and also an application as between the paternal grandparents and the mother. The Actrecognises that, as long as it is in their best interests, a child has the right to spend time and communicate with their parents, and other people important to them, such as grandparents, relatives and members of extended families (see section 60B(2)(b)). The issues are complex and, in my estimation, the family report will reflect that complexity. Accordingly, I have referred to the desirability of the manager of Child Court Services allocating this report as if it were two family reports, pursuant to section 62G, rather than one family report, so that there is not a resource difficulty.
The next issue which has arisen – and I’m grateful for the practitioners for the mother drawing it to my attention – is whether or not the children should be observed by the family consultant with any or all of the parties with whom they currently don’t have any contact. That is the father, with whom the children have no face-to-face contact, and there is limited ability for the father to communicate with the children in writing. It is also the paternal grandparents, who have a greater degree of communication with the children, – but not face-to-face communication.
Mr Nicholson, for the mother, submits that it should be left to the discretion of the family report writer as to whether the children, or any of them, are observed with the father and/or the paternal grandparents. The father’s position is that he wants there to be an observation between the children and himself and, I infer, the grandparents, providing that it’s not detrimental to the children. I infer from that position that he is not opposed to Mr Nicholson’s proposal to leave any meeting between the father and the children and the paternal grandparents and the children for assessment purposes to the discretion of the family report writer. It is accepted that the family report writer would make a decision about whether to convene a meeting between the children and the adults by balancing best interest considerations.
The paternal grandparents’ position is that there should be an observation at least of their relationship with the children, and that that should be done regardless. It should not be left to the discretion of family report writer.
The independent children’s lawyer supports the wife’s position.
I am concerned about placing sole responsibility for the children being observed with the family report writer. I do not want him or her to be in a position of having to justify his or her position to the parties in the midst of the assessment. I don’t want there to be that distraction.
My preference is for the report to be prepared to a certain stage at which the report writer can then refer the matter back to court for an order entitling him or her to see the children with one or more of the parties with whom the children don’t currently have face-to-face contact. It seems to me to be a cleaner way of doing things. However, in practical terms, it probably doesn’t do much more than Mr Nicholson’s proposal does, which is to leave it to the discretion of the family report writer.
I also want to avoid a situation where a family report is published and the parties subsequently make application to be observed with the children. I don’t anticipate that this family report will be prepared much before August of this year, given the chronic shortage of resources for such reports, and I don’t want to lose the hearing dates that I’ve allocated to the matter because the Child Court Expert has insufficient time to conduct observation sessions. Optimally, the children should be observed with the paternal family members who are parties to the proceedings. However, there are a number of countervailing considerations in this case. It is conceivable that these proceedings may conclude with an order, based on my assessment of the best interests of each child, which operates so that the children have no time or communication with the paternal family members.
In all of the circumstances, I will adopt the formulation of Mr Nicholson, but reserve to each party liberty to make application urgently in relation to observation between the children and any party to the proceedings.
Reliance by the parties on documents produced or created for these proceedings in other proceedings
The final matter which I have been asked to decide is whether or not the parties can rely on records of decisions made in this court and in the Federal Circuit Court in relation to family law matters. The father has already made reference to the decision of Judge Stewart in the earlier proceedings to obtain an interim intervention order. That was a matter upon which Hartnett J commented in her reasons for decision. The father says the mother has also made use of records of proceedings in this court.
The parents do not require permission to rely in the state court on orders made and reasons for decision published in these proceedings. Those documents are not subject to any implied undertaking against disclosure.
To put beyond doubt the legitimacy of both parties relying on accurate records of what has been handed down as reasons for decisions and what orders have been made by this court, I will direct that my Associate send the eligible documents by electronic means to the Magistrates Court today. Of course, it remains a matter of what the presiding magistrate makes of any such documentation and whether or not it is admitted into evidence in those proceedings.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett dated 24 January 2022. Associate:
Dated: 15 February 2022
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