Melonas and Dietz

[2020] FamCA 492

FAMILY COURT OF AUSTRALIA

MELONAS & DIETZ [2020] FamCA 492

FAMILY LAW – PRACTICE AND PROCEDURE – Parenting matter – non-appearance of mother – request for the Department of Health and Human Services to intervene.

Family Law Act 1975 (Cth)

APPLICANT: Mr Melonas

RESPONDENT: Ms Dietz

INDEPENDENT CHILDREN’S LAWYER: Ms Lia

FILE NUMBER: ADC 954 of 2018

DATE DELIVERED: 13 May 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Prendergast Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hession

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Lia

Orders

UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 apply to any cross-examination occurring in the proceedings on or after 11 September 2019;

AND FURTHER NOTING that the parents have each been advised by the court:

(a)       that pursuant to those requirements, neither parent may cross-examine the other parent personally;

(b)       that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other parent;

(c)       as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d)       that a copy of these orders will be provided by the court to Victoria Legal Aid, which administers the said scheme.

IT IS ORDERED THAT:

1. These proceedings be adjourned to Tuesday 7 July 2020 at 10.00 am (“the adjourned date”) NOTING THAT, in the event that the family report of Ms B has not been published to the parties, the independent children’s lawyer may obtain an administrative adjournment of that date to follow the publication of the report. It is essential prior to the hearing on the adjourned date that the parties have an opportunity to have read and digested the family report.

2. The mother forthwith make application to Victoria Legal Aid for representation pursuant to s 102NA (2) of the Family Law Act 1975.

3. The Order made on 15 January 2020 be amended by deleting paragraph 12 thereof.

4. IT IS NOTED that the interviews for the family report assessment are scheduled to take place on 10 June 2020.

IT IS REQUESTED

1. That pursuant to section 91B of the Family Law Act 1975 the Secretary of the Department of Human Services Victoria intervene in these proceedings.

2. That a proper officer of the Department of Health and Human Services contact the independent children’s lawyer and obtain from the independent children’s lawyer the current residential address of the mother for the purpose of conducting a home visit to ascertain the physical and emotional wellbeing of the child X born … 2013 (“the child”) and to ascertain the school at which the child is currently enrolled and inform the independent children’s lawyer of that school.

IT IS FURTHER ORDERED THAT:

1. The time for compliance by the mother with paragraph 1 of the Order made on 15 January 2020, in that she provide an updated report from her treating psychologist or psychiatrist, be extended to 10 June 2020.

2. My Associate provide a copy of Exhibit “C1” to the father’s practitioner and to the independent children’s lawyer NOTING THAT the mother’s email address is to be obscured.

3. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue. The independent children’s lawyer forthwith serve a subpoena on each of Dr C and Dr D of F Centre, K Street, Suburb M, Victoria for details and records for the mother and the child.

4. For the purpose of implementation of paragraph 2 of the Order made on 15 January 2020 the independent children’s lawyer provide to each party her recommendation as to a suitably qualified psychologist to provide an assessment of the child and the independent children’s lawyer and the parties do all acts and things necessary to apply to Victoria Legal Aid for funding to enable that assessment to be undertaken. For the avoidance of doubt, it is not appropriate that the assessing psychologist to be the child’s past or present treating psychologist.

5. The mother contact my chambers, ... - to conduct a test of her use of the Microsoft Teams platform in anticipation of the adjourned date.

6. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties and to the Department of Health and Human Services together with a copy of this Order.

7. Henceforth parties should not file documents via the Commonwealth Court Portal which contains confidential information not to be revealed to the other party.

IT IS DIRECTED:

1. 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.

2. That the email from the mother to the Court this day be marked Exhibit “ICL 1” and remain on the court file in an envelope marked “Judicial Officer Only” and be placed in the pocket reserved for correspondence.

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 Melonas & Dietz 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: ADC 954 of 2018

Mr Melonas

Applicant

And

Ms Dietz

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as the first day of a parenting hearing concerning X, born in 2013. 

2. The application before the Court is the father’s application, filed in 2018, to spend time with X, he having not spent time with X since January 2018.

3. This hearing is conducted using the court’s Microsoft Teams platform of which all parties have been provided details as to use and connectivity.

4. On 15 January 2020, I made orders that the mother provide an updated report from her treating psychologist and/or psychiatrist to the Independent Children’s Lawyer and to the applicant father.  She has failed or neglected to do so.  I also ordered that the child be psychologically assessed by a suitably qualified psychologist, and that has not occurred.  The mother was directed to attend the G Services, together with the father, but separately, for the purpose of placing the family’s name on the waiting list.  Notification was received from the G Services that supervised time would not be appropriate for this family.  The father is open to making application to another supervised contact service.

5. The history of this matter is somewhat concerning.  There is an informative Children and Parent Issues Assessment, completed by Ms B, Family Consultant, dated 15 July 2019.  It helpfully recites a history of the matter, including various assessments of the parties.  It mentions, in particular, Y and Z.  Ms B reported [27-38]:

   Child safety and wellbeing

   X has been reportedly been exposed to ongoing and significant family violence with each parent identifying the other as being the primary perpetrator. Each parent described X at times, being held by one or other parent whilst that parent was reportedly perpetrating family violence against the other. Neither parent has indicated any attempt to protect X from such exposure.

   X has also reportedly been exposed to pornographic and violent images, with Mr Melonas reportedly perceiving that given her age and stage of development at that time, she would not understand the content and this would not harm her; for example, reportedly stating; ‘she would not know what rape is.’

   The father alleges the mother has physically disciplined X inappropriately, that she has locked her in a dark room as a form of discipline and that she has acted in a neglectful manner, leaving her crying inside the house whilst she was outside smoking.

   Both parents subjected X to excessive use of suppositories to address constipation. She reportedly had blood in her stools, but neither parent sought medical advice regarding this issue.  It is likely that X would have been adversely emotionally affected by this practice and according to the mother has had ongoing issues with toileting.

   X has also been exposed to both parents’ using illicit substances, consuming alcohol to excess and also to their compromised mental health. It is possible, if not likely that at times, neither parent was emotionally or psychologically present to meet their child’s needs.  Each parent accuses the other as using X in their conflict, as ‘a pawn’ in an attempt to manipulate or have control over the other.

   Involvement of the Department for Child Protection

   The Response to Notice of Risk, which is undated, records that: The Department for Child protection has had no investigative involvement with this family and there are no substantive investigations, assessments or reports on file for this child.

   Drugs and alcohol

   Both parents have a history of using illicit substances and alcohol, including cannabis and methamphetamine. Neither parent was able to acknowledge the impact of illicit substance use and consumption of alcohol on their parenting of their young daughter, and the subsequent impact for her. Each parent’s capacity to be attuned to their child is likely to have been compromised as a result of their use of illicit substances. And at times her physical needs may have been neglected.  

   The report prepared by Dr H dated 06/06/2019 records  Mr Melonas has provided three urine screens which do not detect any illicit substances. In addition as per Court Orders, Mr Melonas has also submitted for hair analysis which did not test positive for illicit substances.  Mr Melonas completed the Alcohol, Smoking and Substance Involvement Screening Test (ASSIST), the results of which indicated moderate risk for tobacco related harm and low risk for all other substances.

   Mental health

   Mr Melonas attended for a Court ordered assessment with Dr J on 13/12/2018. In the Psycho-Sexual Report prepared by him, Dr J records: In summary , there is evidence of personality difficulties with anti-social traits based on historical offences and contributed by allegations of violence…and the potential is that substance use, particularly methamphetamine use may have contributed significantly to these problems.

   Mr Melonas advised he has attended counselling with a psychologist to assist him to manage the impact of the family violence allegedly perpetrated against him by Ms Dietz and also to assist him with his emotions as a result of not having had any contact with X for an extended period.

   Ms Dietz has a long history of mental health issues, including self-harming behaviours. She attended for a Court ordered assessment with Dr J on 20/11/2018. In the Psychological Evaluation prepared by him Dr J records… [Ms Dietz] presents with a picture of personality difficulties with borderline personality features. She has experienced past anxiety and depressive symptoms and more recently some post trauma type symptoms…

   Ms Dietz advised she has attended psychological counselling throughout 2018 and into 2019. Dr D, Psychologist,  filed an Affidavit on 22/08/2018 in which she deposed: Ms Dietz meets the diagnostic criteria for a diagnosis of Post-Traumatic Stress Disorder (PTSD)

6. Ms B concludes [41- 48]:

   EVALUATION

   This assessment concerns the future parenting arrangements for X born in 2013.  X has not spent time or communicated with her father since mid-January 2018.

   She reportedly was exposed to significant and frequent family violence with each parent alleging the other to have been the primary perpetrator of family violence. Allegations include verbal, emotional, physical and sexual abuse. From the information provided by them it would appear that their relationship was highly dysfunctional, abusive and there was an increasing lack of trust between them.

   Ms Dietz’s narrative was consistent with the information in her affidavit filed on 04/04/2018 and the dynamics described are consistent with what the literature on family violence has identified as Coercive Controlling Violence.

   Ms Dietz expressed ongoing fear for X’s safety if she was to spend time with Mr Melonas without formal supervision. In addition she expressed considerable anxiety about having herself to be in contact with him if she is required to facilitate X spending time with him.

   X has been attending psychological counselling since early 2018 and continues to attend on a regular basis.  According to Ms Dietz, many of the symptoms, which were indicative of a trauma response, have reduced in the past eighteen months since she left Mr Melonas and returned to Victoria with X.

   It is essential that the therapeutic relationship not be undermined and therefore rather than records being subpoenaed, the Court will be assisted by the preparation of an assessment report by X’s treating psychologist. This report is to address the impact on X of her experience of alleged prolonged exposure to significant family violence, her progress to date and the possible impact on her emotional and psychological wellbeing if she were to spend any time with her father.

   In hind sight, Ms Dietz recognises that her own experience of alleged significant family violence affected her capacity to be a present and attuned parent. She advised that X had limited experiences for interaction with other children, and also did not have a regular or predictable routine.  She expressed significant regret for her contribution to X’s emotional and psychological wellbeing having been compromised.

   FUTURE DIRECTIONS

   The following future directions are respectfully offered to the Court and the parents for consideration at this interim stage.

   I.X continues to live with her mother

   II.Time with the father be reserved

   III.An assessment Report be provided to the Court by X’s treating psychologist

   IV.The Court will be assisted by an updated report from each parent’s treating practitioner.

   V.Further assessment via a Family Report may be of assistance to the Court. 

Non-appearance of mother

1. When the matter came before me in the Judicial Duty List on 15 January 2020, the mother represented herself.  When the matter was before Alstergren CJ on 25 February 2020, the mother failed or neglected to appear.

2. It appears that the mother has not kept the Court informed of her current email address or telephone number and correspondence sent by the Court was sent to a previous email address of the mother’s, which is not operational.  Prior to commencing the hearing this morning, my Legal Associate obtained a further email address details from the Independent Children’s Lawyer and immediately sent a notification to the mother at that email address, with instructions on how to appear by video to join the hearing.  The mother did not join the Microsoft Teams meeting by video. 

3. At 9.25am today, the mother sent a response to the court which is as follows (inclusive of spelling and grammatical errors):

   To the respectable Associate to thecHonourabe Jystice Bennet.

   Due to my mental health I am not able to come to the courtroom today. I requested the matter to be adjourned months ago, according to the Honourable Justice Bennet's instructions during the Jan 15th hearing, and before my solicitor with N Lawyers filed a notice of Ceasing to Act while covid19 restrictions were being enforced and rendering me helpless in this matter yet again.

   Further Information as I'm aware is required at this time are details of X's and my own treating psychologists which are as follows:

   Dr C

   Dr D respectively,

   both treating at F Centre

   K Street

   Suburb M

   Due to extreme financial and emotional hardship and housing arrangements reports have not been drawn up in time for this hearing nor appointments met due to cancellation.

   I request that the matter be adjourned as I had already but was not heard by my former legal representation. I require new legal representation at this time and do time to settle after mammoth emotional traumatic period since the last time this matter was heard.

   Yours faithfully,

   Ms Dietz

4. My Legal Associate then provided instructions to the mother about how to appear by telephone as opposed to video, including instructions on how to appear from a private telephone number so that the mother’s telephone number would not be shared with the father. At 1.13pm the mother sent my Chambers the following email:

   I apologise but I tried and don't know how to do that..caller ID thing. I'm not very tech savvy.

s.91B Referral to DHHS

1. My concern is that the mother may be purposefully avoiding the proceedings. She has been in some sporadic contact with the Independent Children’s Lawyer, with the last contact on Monday, 4 May 2020. The Independent Children’s Lawyer has been provided with the mother’s current residential address but I am concerned that there should be some verification that the mother is, in fact, residing there. Furthermore, due to the mother referring to “mammoth emotional traumatic period” since 15 January 2020, I am concerned that there be some checking on the welfare of X. For that purpose, I will make a request pursuant to s 91B of the Family Law Act1975 (Cth) for the Department of Health and Human Services to intervene and specifically request that they visit the child at the home, which will be the address that can be provided to them by the Independent Children’s Lawyer.

Full Family Report (s62G(2))

1. The next Court event in this matter is that the parties are due to be assessed for the Family Report which will be prepared by Ms B.  Correspondence went out to the parties on 12 May 2020; however, the notification to the mother will presumably have gone to an address which is not her current address.  My Chambers will send that letter again, immediately, to her at the email address about which we now know.  The correspondence records that the parties are to be interviewed by Ms B on Wednesday, 10 June 2020.  It will be by video conference.  The father is to log in at 9.00am and the mother at 11.00am.

2. The parties do not need any fancy equipment in order to participate by video conference.  The only essentials are that they have an electronic device which has a microphone and a camera, that they have an email address and that they have reliable internet service.  If a party is in doubt about having internet service which is reliable enough, they should ensure that they can be present somewhere where they do have access to reliable internet.  The Court will conduct a test with the mother sometime today, if they can get a response from her or, if we cannot get a response, so soon thereafter as my Associate does get a response.

3. The matter will proceed with the next step being the preparation of the Family Report.  I do not want the matter to get lost in the system in the event of non-compliance by the parties or continued non-compliance by the mother.  Accordingly, I reserve liberty to apply on short notice which can be activated by the Independent Children’s Lawyer by contacting my Associate, ...

Role of independent children’s lawyer

1. The task of an independent children’s lawyer is to act in the child’s best interests[1], ensure that the child’s views are ascertained and heard[2], and to endeavour to minimise the trauma to the child associated with the proceedings[3]. If the mother continues to be uncontactable and/or fails or neglects to make herself available by video conferencing for the family report assessment, the independent children’s lawyer should request a mention so that any necessary directions can be made or orders sought.

   [1] S68LA(2)(b) FLA

   [2] S68LA(5)(b) FLA

   [3] S68LA(5)(d) FLA

s.102NA order

1. A s 102NA cross-examination ban order can be made where:

   a)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;

   b)a family violence order (other than an interim order) applies to both parties;

   c)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;

   d)the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;

2. Section 102NA is, therefore, activated by the father having been charged and convicted on 21 September 2018 of aggravated assault upon the mother after pleading guilty.  An Intervention Order was issued against the father in respect of the mother and child in early 2018 but it is unclear if this proceeded to a Final Intervention Order or if this has expired.

3. An Order could otherwise be made of the Court’s volition based on the family violence allegations of the parties.  The mother alleges that the father has been physically, psychologically and financially abusive towards her and the child.  The mother makes allegations of rape, threats to kill, assault, coercive control and property damage.  The father also alleges family violence in that the mother was verbally and physically abusive and makes allegations of name calling and the mother slapping him.  Both deny the others allegations. 

4. It is now incumbent on the mother to make an application to Victoria Legal Aid for assistance.  The necessary information will appear with the engrossed Order.  If the mother does not make an application, then she will not be appointed a lawyer.

Role of independent children’s lawyer

1. The task of an independent children’s lawyer is to act in the child’s best interests[4], ensure that the child’s views are ascertained and heard[5], and to endeavour to minimise the trauma to the child associated with the proceedings[6]. If the mother continues to be uncontactable and/or fails or neglects to make herself available by video conferencing for the family report assessment, the independent children’s lawyer should request a mention so that any necessary directions can be made or orders sought.

   [4] S68LA(2)(b) FLA

   [5] S68LA(5)(b) FLA

   [6] S68LA(5)(d) FLA

2. Likewise, the independent children’s lawyer is required to monitor the progress of the mother’s application for a lawyer under the s102NA scheme and bring to the attention of the court any undue delay in that regard.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 May 2020.

Associate: 

Date:  17 June 2020