MEADOWS & MEADOWS

[2017] FamCA 907

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS [2017] FamCA 907

FAMILY LAW – PARENTING – Where the mother seeks to set aside previous orders and have the child returned to her care – Whether it is proved that there was a change in circumstances that would satisfy the court that the orders ought to be amended

FAMILY LAW – SPOUSAL MAINTENANCE – Whether a spousal Maintenance Order should be made

Family Law Act 1975 (Cth)

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 11 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 9 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: McPhee Kelshaw

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stidwill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

Orders

1.   The wife’s Applications in a Case filed 22 February 2017, 5 May 2017 and 7 September 2017 are dismissed.

2.   The wife is permitted to press her application for the discharge of the Independent Children's Lawyer once the matter is in a state to be listed for hearing, it being noted that she did not press for the discharge of the Independent Children's Lawyer in the hearing before me.

3.   The final hearing of all outstanding issues in this case is expedited.

4.   Subject to the wife agreeing to participate in a psychiatric assessment of her by an expert appointed for that purpose, the Independent Children's Lawyer is to provide the wife with a list of three experts who the Independent Children's Lawyer considers are qualified to provide a report to the Court. The wife is to select one name from the list and forthwith notify the Independent Children's Lawyer.

5.   In the event of the wife having notified the Independent Children's Lawyer of the name of the expert she would attend upon for the purpose of the Court being provided with a report as envisaged in order four hereof the Independent Children's Lawyer is to prepare a letter of instruction to that expert seeking the provision of a report which addresses the following:

(a)   Opinion of the expert as to the psychiatric/mental health of the wife.

(b)  Any recommendation the expert can make as to any necessary treatment or management regime in relation to any aspect of the wife’s mental health.

(c)  Opinion as to any risk to the parties’ child’s physical, emotional or mental wellbeing which might arise should the child live with the wife or spend significant time with her in the event of the expert opining the wife does have a diagnosed psychiatric illness or other mental health condition.

6.   The cost of obtaining the report is to be met by the husband. To that end the husband is permitted to draw the amount required to pay for the report against the mortgage registered against the title to the former matrimonial home. To that extent the provision of order 1 of 2 June 2015 made by the Federal Circuit Court and filed in this Court is suspended only so far as this order permits the further drawing of funds against the subject mortgage and security.

7.   The Independent Children's Lawyer is to ensure that sufficient funds are held by the Independent Children's Lawyer to pay for the expert’s report before work is commenced by the expert.

8.   The Independent Children's Lawyer may provide to the expert copies of any document which the Independent Children's Lawyer considers will assist the expert in the preparation of the report. The Independent Children's Lawyer is to provide to each of the husband and wife a detailed list which identifies the documents or parts thereof provided to the expert.

1. Pursuant to section 62G of the Family Law Act a family consultant of this Court be appointed, on an expedited basis, as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the child B, born … 2011, and that in preparing their report to the court, the family consultant be requested to consider matters which will be advised prior to the commencement of interviews by the family consultant in preparing the report.

10.The Independent Children's Lawyer is to prepare a list of matters to be addressed in the family report and provide a draft of same to each of the parties. Each party is to reply with any comment, objection or suggestion within seven days of receipt of same. The Independent Children's Lawyer is to provide a final recommendation of the items to be addressed in the report to the parties and the Associate for Justice Le Poer Trench as soon as practicable thereafter. Failure of a party to respond to the draft list received from the Independent Children's Lawyer within seven days of receipt of same is to be taken by the Independent Children's Lawyer to mean there is no objection to the matters identified in the list.

11. Upon the Family Report being available for release the matter is to be referred by the Docket Registrar to the Case Management Judge in the event there is not at that time a Docket Judge allocated for the case.

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 Meadows & Meadows 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 SYDNEY

FILE NUMBER: PAC 3509/2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. The wife in this matter Ms Meadows has filed three Application in a Case forms which have been listed for hearing today. Those Application in a Cases were filed on 22 February 2017, 5 May 2017 and 7 September 2017. The wife informed the Court at the commencement of the hearing that she was relying upon the application filed 7 September 2017 as that set out a consolidation of the orders she was seeking.

Application to set aside the orders of 10 January 2017

1. The wife seeks an order that the orders of 10 January 2017 be set aside and that an order be made for the parties’ daughter B, born in 2011 (“the child”), to live predominantly with her. She further seeks orders for the child to spend time with the husband on alternate weekends and other times. The orders were made by Judge Kemp, who heard interim applications sought by the parties in the case in late 2016.

2. In support of her application the wife relied on the evidence set out in her Affidavit sworn 7 September 2017. In submission she directed the Court’s attention to the following evidence which she said should move the Court to change the residence orders.

3. In her submission the wife was asked to identify any evidence which set out a qualified opinion as to the current state of her mental health. The wife was unable to do so. Rather, on a number of occasions she sought to challenge the concerns raised by Dr C in the report she provided to the Federal Circuit Court and upon which Judge Kemp of that Court relied in making the orders of 10 January 2017. It is common ground that the wife did not file any appeal against the making of those orders.

4. One of the orders made by Judge Kemp on 10 January 2017 was as follows:

   The mother’s overnight time with the child shall occur at the maternal grandparents’ home at [D Street, Suburb E] with one or both of the maternal grandparents being present, pending a psychiatric assessment of the mother being carried out as recommended by [Dr C], with the cost of such an assessment to be shared equally…

5. The husband and the Independent Children's Lawyer informed the Court during the hearing before me that they had attempted to arrange such an assessment, however, the wife has steadfastly refused to participate in same.

6. The judgment of Judge Kemp is relied upon by the husband who says it is necessary for the Court to consider that document in order to understand whether there has been any change of circumstances which would require the Court to depart from the orders made by that tribunal given there has been no appeal against the orders.

7. The judgment of Judge Kemp is comprehensive spanning some 46 pages. It considers the provisions of section 60CC of the Act together with other relevant sections.

8. A feature of the judgment is the reference to the Family Report provided by Dr C. The report dealt in part with the concerns raised by Dr C about the current (then) state of the wife’s mental health. At paragraphs 66, 68, 84, 118 and 165 the judge addresses aspects of the wife’s health, including her mental health. At paragraph 165 the judge said “The court accepts that [Dr C’s] evidence will need to be the subject of testing and, indeed, [Dr C] would be assisted by the provision of an expert psychiatric assessment of the mother.”

10.The judge made provision for the wife to have such a psychiatric assessment in Order 5 made by that Court on 10 January 2017. As stated elsewhere the wife has told this Court she will not participate in such an assessment.

11.The mother submitted that compelling evidence which supports her case for the reversal of the parenting arrangement can be found in particular parts of her affidavit.

12.The wife said that the child was required by the father to travel to school by bus. That, she said, was not something which had been placed before the Federal Circuit Court for the hearing last year. She said that the husband’s case had been that the child should attend the school near to his residence as it involved an eight minute trip. The wife says the child reports to her she spends considerably longer than that on the school bus.

13.The husband in his affidavit says that he is now residing with his partner Ms F (since August 2017) who has a daughter G who was born in 2011 and also lives with them. The husband and his partner plan to marry next year. The husband informed the Court that he and his partner are expecting a child. He says B relates well to both his partner and to her daughter. He says the wife has taken a dislike to his partner and her daughter. He included in paragraph 27 a transcript he says came from a text message from the wife. That is an abusive text in which the wife refers to the husband’s new partner as a “povo”.

14.The husband in his affidavit between paragraphs 35 and 49 answers the most significant of the wife’s allegations that he is not properly caring for the child. He answers the complaint made about the sunburn the wife said the child had been presented to her with. He denied the extent of the sunburn alleged by the wife. He asserted he is assiduous in applying sunblock to the child’s skin however he agreed that notwithstanding the precautions he takes she has fair skin and has been sunburnt.

15.The husband explained how the child came to have a mark on her eye. He set out the text he had sent to the wife explaining the mark.

16.In response to the wife’s allegation that the husband interferes with and monitors her telephone conversations with the child, the husband said the child has shown resistance to speaking with the wife on the telephone, also adding the wife questions her about aspects of her care with the husband.

17.The husband denied the allegation of the wife that he had attended at her residence in E Town since the Court orders were made.

18.In response the husband raised his own concern about the wife seeking to have the child involved in counselling. It seems the wife is seeking to have the child counselled by unilaterally arranging for that to occur.

19.Through his counsel the husband denied he has harassed the wife as she alleged in submission. He denied the wife’s allegation that his partner has a relative who suffers from mental ill health.

20.The wife referred the Court to annexure “W” to her affidavit which sought counselling for the child in a written communication. The husband informed the Court he opposes such counselling at this time.

21.The wife in her submission spent some time reiterating her complaint about the determination of Judge Kemp, so far as it related to his findings and stated concerns about her mental health. The wife said the husband had manipulated the records from her admission to the psychiatric ward of H Hospital in 2014. The wife also made an allegation that the husband suffered from mental ill health. No evidence of such a feature of the husband’s presentation to Dr C was noted in the reasons of Judge Kemp. Quite the contrary. No evidence was presented by the wife which would satisfy me the mental health of the husband required investigation.

22.Any change of residence for the child at this time must be seen as potentially disturbing for her. It would mean a change of principal carer and school, which she has commenced for the first time this year. Further, it would be contrary to the recommendation of Dr C which was provided late last year.

23.Having considered the evidence and submissions relied upon and made by the parties I find the wife has not satisfied the Court there should be any departure from the current interim orders at this time.

The wife’s urgent spouse maintenance application

24.The wife seeks two orders for urgent spouse maintenance. Firstly she seeks a lump sum payment of $30,000. She further seeks a continuing weekly payment of $750 per week. The husband opposes both orders sought.

25.The husband and wife each filed updated Financial Statements. The husband’s Financial Statement does not show any capacity to meet either proposed order as sought. No attack was made by the wife upon the stated expenditure of the husband or any aspect of his Financial Statement, with the exception that the wife said the husband had misstated the income available to him. She asserted that the company operated by the husband provided him with an income which was far greater than that represented by the income set out by the husband as received by him from that source. No document evidence was provided to support her assertion and it was denied by the husband.

26.The husband’s income is stated at $1,099 per week and his expenses are stated to total $1,253 per week. As such, given no real attack on his expenses I find he has no capacity to meet a periodic spouse maintenance order.

27.The husband did challenge the wife’s need for spouse maintenance stating she had failed to establish that which is required by s 72 of the Act. However, given that I am satisfied he has no capacity to meet an order I will not proceed further to determine whether the wife meets the threshold required by the section.

28.In relation to the lump sum order sought, I do accept it is reasonable for the wife to have a motor vehicle available to her. I accept for the purpose of this hearing that the vehicle she has, it being common ground it is the property of the husband’s company, is unserviceable and needs repair. It is reasonable also to accept that the cost of repair could be as much as the car would then be worth.

29.The question to be asked is whether there is a fund available to meet this urgent spouse maintenance need of the wife. She points to the equity in the draw down facility which the husband (the registered proprietor) has with the mortgagee. The husband submits that his income available to him at this time is less than his required expenditure and that a draw down will mean an increase in the amount of monthly payment which the mortgagee will require. He says the house is being used to house the child as well as he and his partner. Soon there will be an additional child to house and support. Further, the husband says he has agreed to draw a further sum against the mortgage in order to assist the wife with the parenting case. That funding would pay for an expert’s report on the state of the wife’s mental health.

30.Neither the husband nor the wife has submitted the former matrimonial home should be sold at this time.

31.The Court is not unsympathetic to the wife’s plight. Her ability to work will, possibly, be conditional upon her health. She has worked during the cohabitation, however, that work was with the husband’s company and consequently does not equate to work in the broader workplace. Thus the capacity of the wife to obtain employment which might provide her with sufficient income to meet her reasonable expenses may be problematic.

32.For all those reasons I find the wife has failed to make her case.

“Protection Orders” sought by the wife.

33.In addition to the parenting and spouse maintenance orders sought by the wife she also seeks a protection order for both herself and for the child. In support of that order the wife submitted I would find evidence to support the making of those orders in annexures marked “S”, “Q” and “H” to her affidavit of 7 September 2017.

34.Annexure “S” consists of a print out of text messages which the wife says passed between the husband and her on about 5 May 2017. The wife says the text messages related to an event which was the handover of the child to the wife’s mother at the designated handover venue. The wife alleges the husband was refusing to hand the child to her mother. The wife said she called the police about the incident and she understands they attended the handover site near J Town. The husband did hand the child to the wife’s mother on that occasion. The wife said that the husband claimed to be concerned about the wife’s whereabouts and that he said he wanted to ensure the child would be safe.

35.It is the wife’s case that the messages contained in annexure “H” provide evidence of harassing and other behaviour from the husband toward the wife which warrants the Court making a “protection order” for both the child and her.

36.The husband submits that the Court will read the text messages from the husband as reasonable and not indicative of the type of behaviour complained of by the wife.

37.I have examined the text messages. In the circumstances of this case I consider it was a reasonable request from the husband to the wife that she tell him where she was and explain why her mother was making the collection rather than the wife. The wife refused to answer his reasonable request thus exacerbating the circumstances. Further the wife called the police which was in my view quite unnecessary and done in circumstances where the wife potentially exposed the child to the trauma of having to witness the Police intervention.

38.Annexure “Q” to the wife’s affidavit is said to support her assertion that on 7 June 2017 the husband did not facilitate phone contact between the wife and the child. The evidence does not establish the allegation made by the wife.

39.Annexure “S” to the wife’s affidavit is said to show evidence of actions by the husband which warrant the intervention of the Court to make an order for the protection of the wife and the child. I have read the exchanges. I do not accept that the evidence contained therein warrants the order sought by the wife.

40.Considering the totality of the evidence relied upon by the wife to support her request for the Court to make the injunctions (protection orders).

The “Property Injunction Order” sought by the wife.

41.The wife sought orders which were about the motor vehicle, which it is conceded is owned by a corporation controlled by the husband. The wife has had the use of the vehicle for some time, it would appear. The wife says the vehicle is now unable to be driven and needs a new engine. The husband has requested the car be sold and the liability to the financing company be discharged.

42.It is the wife’s case that there is sufficient surplus in the draw down facility secured against the former matrimonial home to be able to repair the vehicle. She says that the vehicle is necessary for her to be able to find employment and also to be able to transport the child from the changeover site at K Town to her home at E Town and return each time the child spends time with the wife.

43.The husband opposes that order being made as an interim property order or as a spouse maintenance order.  The husband says that if he was required to draw down sufficient to repair the vehicle as the wife requires then that would increase the payments he will be required to make to the mortgagee, pending the determination of the property case in this Court. He further says that he has already agreed to assist the wife by drawing sufficient against the “draw down facility” to meet the cost of engaging a Court expert to assess and report upon the mental health of the wife.

44.In relation to the husband’s ability to meet his expenses and the increase in the mortgage the wife alleges that the husband has been dishonest in the representation of the income available to him from his company “L Pty Ltd”. There is no way to test such assertions in the time available to hear an interim application, however, the husband, who is represented by solicitor and counsel will know that if he has misrepresented the true position of the company then should that be established at the final hearing then he is very likely to suffer the consequences of such a misrepresentation.

45.The husband says the cost of the repair exceeds the value of the vehicle. He further says that he bears the greater burden of financially supporting the child at this time and he does not receive any child support from the wife. Any further draw on his income should not be required by orders sought by the wife in this application.

46.I conclude that the wife has not made out a case that the husband can afford to meet the cost of the repair of the motor vehicle in her possession.  

The Discharge of the Independent Children's Lawyer

47.The wife has sought an order that the Independent Children's Lawyer be “removed”. She did not refer the Court to any evidence to support that order. She did not make any submission to support such order.

48.Given that this case needs to be made ready for trial as soon as it can reasonably be accomplished and given the wife is unrepresented, the court needs the Independent Children's Lawyer to assist the Court in reaching a point where trial dates might be able to be allocated. It is therefore important at this time that the Independent Children's Lawyer continues to be involved in this case.

Other matters

49.The presentation of the wife in the hearing and the aspects of the care of the child the child which were addressed by the wife during the hearing moves the Court to mark the case as “expedited”. The case was commenced in the Federal Circuit Court in 2014. The parties were offered a hearing of two days in that Court in December 2016, however, it is asserted by the husband that the wife rejected that offer. The trial Judge therefore heard the interim applications of the parties and made orders on 10 January 2017 which placed the child the child in the primary care of the husband.

50.The evidence from the wife and the statements made by her in the hearing before the Court on 9 October 2017 raise a real concern that the child is being drawn further and further into parental conflict. The conflict to which the child is alleged to be exposed clearly has the potential to be damaging to her development. It is therefore very much in the child’s best interests that the Court hear and determine the matter expeditiously.

51.Each of the husband and wife should know that where there is a high level of parental conflict involving a child of B’s age the Court may well be forced to shield her from that conflict by making orders which limit her exposure to the conflict and, in some cases, limit time for the child with one of her parents to supervised time. Such results are clearly not desirable and the Court therefore urges the parents to use their best endeavours to ensure their parental conflict is outside the sight or hearing of the child.

52.Finally, as stated earlier, the wife has informed the Court she will not participate as a willing participant in having her psychiatric/mental health assessed by a Court appointed expert. The Court urges the wife to reconsider that position. If she asserts (as she has in Court) that there is nothing wrong with her mental health then it will assist her case greatly to be able to have acceptable evidence of that fact before the Court. The absence of such compelling evidence would leave the Court in a position which may make it not possible for the Court to make the orders sought by the wife in relation to the care of the child.

53.For all those reasons the Court makes the orders first set out herein.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 October 2017.

Associate: 

Date:  11 October 2017