Mellis and Mellis

[2020] FamCA 22

FAMILY COURT OF AUSTRALIA

MELLIS & MELLIS [2020] FamCA 22

FAMILY LAW – CHILDREN – Final Parenting – unopposed orders – family violence including threats to kill the wife and children communicated to independent third parties.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mellis

RESPONDENT: Mr Mellis

INDEPENDENT CHILDREN’S LAWYER: Ms Lia

FILE NUMBER: MLC 5299 of 2018

DATE DELIVERED: 14 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Myles

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: No Appearance

SOLCITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Lia

Orders

1. The children of the marriage X born … 2010 and Y born … 2006 (“the children”) live with the mother.

2. The mother have sole parental responsibility for the said children.

3. The order for the appointment of an independent children’s lawyer be and is hereby discharged save that in the event that an appeal is filed the independent children’s lawyer remain in the proceedings.

4. My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.

5. Otherwise all extant children’s proceedings be and are hereby dismissed.

6. I extend the time for compliance with the subpoena issued at the behest of the wife to the Proper Officer or Trustee of Super Fund A to 7 February 2020 and I endorse the subpoena accordingly.

7. The outstanding property proceedings is otherwise adjourned to the Judicial Duty List on 10 March 2020 at 10.00 am (“the adjourned date”).

8. The wife have permission to make any further amended application initiating proceedings and providing that it is filed by not later than 29 January 2020 that application be returnable on 10 March 2020 and there be leave to proceed with that application unopposed in the event that the husband fails to appear.

9. In the event that the husband proposes to participate in the proceedings and to appear on the adjourned date he file a Notice of Address for Service by not later than 4 February 2020 specifying a postal address for service as well as the email address already in the records of the Court.

10. There be leave to the wife to issue any further or other subpoenas to produce documents.

11. Costs be reserved.

IT IS DIRECTED:

1. That a Registrar of this Court send a copy of my reasons for decision this day to the Clerk of the Magistrates’ Court of Victoria under cover of correspondence noting the reference number to the Intervention Order proceedings as ….

AND IT IS NOTED:

A.That the effect of this parenting order is that the father has no enforceable entitlement to spend time with either or both of the children.

B.That there is an intervention order current to 28 March 2021 in which the children and the wife are protected persons and it includes a prohibition against the husband attending at or within the vicinity of the place of residence or work of any of the protected persons.

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 Mellis & Mellis 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 5299 of 2018

Ms Mellis

Applicant

And

Mr Mellis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list, having been adjourned on 15 November 2019 for an undefended hearing for parenting and property matters. 

2. Today the wife, who attends Court, is represented by Mr Myles, of counsel.  The children with whom the parenting application is concerned, X and Y, have their interests represented by Mr Eidelson, of counsel, who appears on behalf of the Independent Children’s Lawyer, Sarah Lia.  There is no appearance by or on behalf of the husband.  He was called at the door of the Court and there was no response.

3. I note that the Order of 15 November 2019 required that a copy of that order be served on the respondent husband within seven days.  I have read the affidavit of Mr C affirmed on 19 December 2019 and am satisfied thereby, that on 18 November 2019 a copy of the Order made on 15 November 2019 (notifying of the undefended hearing this day) was emailed to the husband at his email address.  I note that the email address corresponds directly with that appearing in the notice of intention to withdraw as a lawyer which was filed by the husband’s former lawyers, D Lawyers of E Town, on 12 August 2019.  Additionally, it has been open to the husband to look at the Court portal and see what documents, including orders, have been made and how this matter has progressed.

4. I have received a very helpful summation of the relevant history to the parenting proceedings from Mr Eidelson.  I note that the wife’s practitioners have also prepared a thorough and helpful case outline, which is on the Court file and was filed on 8 January 2020. 

5. I will here set out a history of the matter as provided to me by Mr Eidelson.  I accept the history provided by the Independent Children’s Lawyer, from which the solicitor for the wife did not seek to deviate. 

6. The applicant wife is 41 years of age and works casually, and the husband is 40 years of age.  The parties commenced a relationship in 1998 before marrying in 2009.

7. There are two children of the relationship, Y who is 13 years of age and X who is 9 years of age. 

8. The parties separated on 1 April 2018 and the wife commenced proceedings in the Federal Circuit Court on 15 May 2018. 

9. The wife says the parties separated due to gross family violence perpetrated by the husband towards the wife.  The allegations of family violence include that the husband has physically assaulted the wife on multiple occasions including breaking her nose, punching her in the face causing her to bleed and causing injury to her head.  The wife alleges that family violence was perpetrated by the husband either within the direct or indirect presence of the children.  The husband denies that he was the instigator of the incidents that caused the wife’s injuries, with his evidence that it was the wife’s actions that led to her own injuries after the husband was caused to retaliate. 

10. The wife deposes that she fled the home leaving the children in the husband’s care on 1 April 2018.  The wife stayed in a women’s refuge before commencing to live with her parents in F Town near B Town.  A Family Violence Intervention Order was made against the husband in April 2018 that only listed the wife as an affected family member.  The husband was arrested in April 2018 after making threats towards the wife, when attending court for a series of Intervention Order breaches.  Whilst the husband was in custody, the wife collected the children from school and took them to live with her at her parent’s home. 

11. In June 2018, the Magistrates’ Court made a full Intervention Order for the protection of the wife and the children.  On 29 March 2019, the Intervention Order was extended and is due to expire 28 March 2021. 

12. The children last saw their father prior to 24 October 2018.

13. By way of further history, on 8 October 2018, the parents and the children were interviewed by family consultant Ms G pursuant to an order made for a child‑inclusive conference.  A memorandum of that appears on the Court file and is dated 11 October 2018.  At that point, the family consultant considered that the children should remain in the care of the wife, where they were settled.  Her observation of the interaction between the husband and the children indicated that time may progress from that which was supervised by the paternal grandmother to one in which someone was in substantial attendance “with a view to eventually moving to unsupervised time”, including overnights.  It was noted that the husband had attended a men’s behaviour change program. 

14. The matter returned to Court before Judge Riethmuller on 24 October 2018.  By that time there had been very significant information collated by the Independent Children’s Lawyer from which documents produced in compliance with subpoenas issued at the behest of Ms Lia, the Independent Children's Lawyer.  That information included information which is at odds with the observations described in the child‑inclusive conference memorandum and Ms G’s opinions. 

15. A convenient summary of the information conveyed to the Court and to the wife by the Independent Children’s Lawyer is found as annexure “D” to the affidavit sworn by the wife on 16 December 2019.  It is a letter dated 16 October 2018.  Omitting formal and irrelevant parts, including being addressed to the wife’s practitioners and to the practitioners then on the record for the husband, being D Lawyers, the letter reads as follows:

    The J Clinic

    The Independent Children's Lawyer spoke with Ms H of The J Clinic on 15 October 2018.  In particular in relation to the file note made by Ms H in relation to session 6 on 9 July 2018.  Ms H indicated that of particular concern to her had been the comments by the father that he was very positive about the ides [sic] of murdering spouses commenting that the men who killed their spouses “had evened up the playing field.”  She said that he saw children killed during these crimes as collateral damage who just “got in the way.”

    Ms H told me that she had challenged the father about what he said and pointed out to him what would happen to the children if he killed their mother.  His response was “they would be better off without the bitch.”

    He told her that he would lie in bed at night thinking up different plans to kill his wife including setting fire to the house in which the wife and children currently live.  He said he had mates who would help him set bombs.  Ms H was very troubled by all of these discussions and told the father that she would have to report them.

    She said that she had spoken to the police on at least two occasions about what the father had said.  She also received a call from Ms K at L Family Care who had also been approached by the father on or about that day and told the same thing about the father.  Ms K had also reported the conversation to the authorities. 

    She said that the father’s initial presentation was really passive and victimised and that he absolutely denied all violence.  He never indicated to her that he was using drugs.  She said after the break up he became really angry and depressed and seemed out of control. 

    She was concerned when he, in July 2018, shaved his head, dressed in black and called himself a “hunter”.

    The Independent Children's Lawyer will subpoena any notes in relation to the above that may have been made by Ms K.  A copy of those subpoena inspection notes will be made available to practitioners.

    Meeting with children

    The Independent Children's Lawyer met with the children on 4 October 2018.

    Both were able to detail violence inflicted on their mother by their father.  They also were able to detail drug use by the parties and particularly the father.

    Time with periods

    It is the view of the Independent Children's Lawyer that an increase in time at this stage in [sic] not warranted.  The Independent Children's Lawyer is extremely concerned about the threats made by the father about the mother to Ms H in July 2018.

    E Hospital

    The Independent Children's Lawyer will provide subpoena inspection notes as soon as possible.

16. On 24 October 2018, the wife was represented by counsel.  Mr Burns, of counsel, appeared on behalf of the respondent husband and Ms Bastick, of counsel, appeared on behalf of the Independent Children’s Lawyer.  Orders were made by consent, that on an interim basis, the previous orders entitling the husband to spend time with the children be suspended, the husband was to attend upon either Dr M or Ms N for a psychological assessment “…including a risk assessment regarding his risk to the children and to the mother, with the father to meet the cost of this assessment … and the psychologist to be provided with copies of the parties’ Court documents and the Independent Children’s Lawyer to provide copies of her notes of the subpoenaed documents.”  The Independent Children's Lawyer’s notes of the subpoenaed documents is the information from which the content of the letter of 16 October was drawn. 

17. It was directed that the parties would enrol in O Contact Centre in P Town to create an option should any time subsequently be ordered between the husband and the children in the future.  No time has been ordered.  Finally, the proceedings were transferred to this Court on the basis that it was a matter involving “complex issues potentially relating to a very significant risk to the children, is most likely to proceed to trial and likely to run for three to four days, and, further, the matter is likely to need interlocutory management to ensure that it is properly prepared for trial.”  It appears to be an entirely appropriate matter to be transferred to this Court. 

18. On 14 January 2019, the Independent Children’s Lawyer received information from the Department of Health and Human Services which was sent to the Federal Circuit Court after a notice of risk was filed in that Court.  That document is on the Court file, although it is not dated.  It is signed by Ms Q as acting senior child protection practitioner and Ms R as team manager.  Essentially, the Department takes the view that as the children are in the settled care of the wife and not spending any time with the husband, they are not at risk. 

19. I am satisfied that the husband has been accorded procedural fairness insofar as he knows or ought to know that the matter is before the Court today.  I am told, and accept, that the husband has not participated in the proceeding since 24 October 2018, including not having submitted for an assessment to the expert witnesses named in Judge Riethmuller’s order. 

20. All orders in relation to children are orders which are pre‑conditioned on the best interests of the children being the paramount consideration for the Court. That does not mean it is the only consideration. The identification of what is in the best interests of the Court is the subject of the legislative pathway set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).

21. I must first and foremost take into account the need to protect the children from physical and psychological harm.  In this case, the children’s safety in the care of the father is a very real concern given the uncontested and unanswered information provided by the Independent Children’s Lawyer from the subpoenaed material in October 2018.

22. Notably, the husband was before the Court on that day.  He was represented by legal practitioners who remained on the record for some time thereafter.  Notwithstanding, there has been nothing filed by or on behalf of the husband to mitigate that information. 

23. Next I must consider the benefit to the children of a meaningful relationship with both parents, which obviously would include the husband.  This is secondary to the need to protect the children from physical or emotional harm.  Whilst it appears from Ms G’s report that the children shared a reasonable and positive interaction with the husband when assessed by Ms G, no sort of relationship is justified by putting the children at the extraordinarily serious risk which the information provided by the Independent Children’s Lawyer indicates that these children and the wife are placed by the husband. 

24. There are various additional considerations set out in section 60CC(3) of the Act and in general terms I take those into account insofar as they are relevant.

25. The children are aged nine and 13 years of age.  As indicated, the children were interviewed by Ms G.  In October 2018 the children were also seen by the Independent Children’s Lawyer.  I am informed that the children expressed concern about seeing the husband on an unsupervised basis, having witnessed significant family violence perpetrated by the husband against the wife.  I am informed that separation occurred following an attack by the husband on the wife in which she sustained head injuries, including a broken nose.  As stated earlier, the husband denied being the instigator of the violence but I gather did not deny that the wife was injured as a result of acts by him.

26. I take into account the effect of changes to the children by virtue of the proposed orders.  It appears that nothing will change for the children because they have had no contact with the husband since before 24 October 2018. 

27. I take into account the capacity of each of the parents to care for the children.  The wife seems to be doing a very good job of it.  The husband is not.  Not only are there the threats of extreme violence and, indeed, lethal violence by the husband against the wife and the children, but there is the fact that the husband is aware of these matters and has apparently not sought any psychological or psychiatric treatment for same.  That treatment would be twofold.  One, for therapeutic effect which should most certainly be done.  The other is for forensic input into the proceedings as envisaged by Judge Riethmuller. 

28. I take into account that the husband has failed to take any opportunity to participate in making decisions about long‑term issues in relation to the children or to spend time with the children or to communicate with the children (or either of them) since October 2018. 

29. The husband regularly pays child support of some $22 per fortnight, which is a modest amount indeed but his last occupation was noted as home duties.  The wife works as a barista in the hospitality industry and is otherwise in receipt of income‑tested pensions and benefits. 

30. I regard the capacity of the husband to provide for the needs of the children, including emotional and intellectual needs, to be significantly curtailed by his apparent mental health deficiencies which may, or may not, be the genesis of his threats to kill the wife and the children. 

31. I am satisfied that there has been significant family violence historically and that the information imparted by the Independent Children’s Lawyer from subpoenaed documents is of extreme concern.  There is an Intervention Order which was initially applied for on 30 April 2018 and made as an interim order, and then made into an order which lasts, as indicated, till 28 March 2021.  It would seem most appropriate that there be a continuing order for the protection of the children and the wife.  I will therefore direct that a copy of these reasons for decision be sent to the clerk of the Magistrates Court at B Town marked with the appropriate reference.  I mark the copy of the Intervention Order “ICL2” and direct that it remain on the Court file.  The orders sought by the Independent Children’s Lawyer will be marked “ICL1” and I direct that they remain on the Court file.

32. I am satisfied that it is in the best interests of both children to make the orders sought by the Independent Children’s Lawyer with some minor amendments as to notations and service of this order on the relevant Magistrates Court.  I note that this is at variance with the last amended application filed by the wife but the variation is to not grant an order sought by the wife which would say that the husband has no time with the children.  That omission from this final order of an order sought by the wife in those terms is less onerous for the husband, therefore I am not concerned that neither the wife nor the Independent Children’s Lawyer press that application at this stage.

1. I have considered in the course of making these parenting orders the presumption for joint parental responsibility or equal shared parental responsibility but am satisfied that the domestic violence in this matter and the lack of engagement by the husband, not only in the lives of the children but in these proceedings, rebuts the presumption in favour of equal shared parental responsibility.  As I have made no order for equal shared parental responsibility, it is not incumbent upon me to set out chapter and verse my considerations of why equal time or substantial time is not appropriate in this case. 

2. I am comfortably satisfied that the children should be spending no time with the husband until he has addressed, in a comprehensive and persuasive way, the concerns highlighted by the Independent Children’s Lawyer from the subpoenaed documents.  

3. The wife’s solicitor informs me that the property matters cannot be finalised today because of a lack of information about the husband’s superannuation interests.  I will provide for a further date and for an amended application to be filed to deal with those matters.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 January 2020.

Associate: 

Date:  21 January 2020