Melsbach and Josephs - [2019] FCCA 2871

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELSBACH & JOSEPHS

[2019] FCCA 2871

Catchwords:
FAMILY LAW – Parenting – children aged 16, 14, 12 and 7 – where the father has spent no time with the children for 22 months – where the children are each adamant that they do not want to spend time with the father – where the father alleges parental alienation and seeks a change of residence and a moratorium on the children spending time with their mother – where the mother alleges realistic estrangement and seeks an order that the children spend time with the father in accordance with their wishes – where the expert who prepared a report in 2018 opined that the children had their own views for their own reasons and were not channelling the views of the mother – where the expert felt that the conduct of both parents had contributed to the current situation – where the expert said that if a change of residence was not successful it could result in highly traumatised children – where the expert’s opinions are soundly based – where a change of residence would in any event be unlikely to stick in relation to the three older children – whether an order should be made for the youngest child to spend time with the father – where the father did not seek this and where there would be a risk of it perpetuating stress on a family which has been in the court system for nearly three years – order for the children to live with the mother and spend time with the father in accordance with their wishes – mother to have sole parental responsibility subject to some conditions.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Becket & Peel [2010] FMCAfam 1424
Becket & Peel (No.2) [2012] FMCAfam 280
Ralton & Ralton [2016] FCCA 1832
Theophane & Hunt [2014] FamCA 1038

Applicant:

MR MELSBACH

Respondent:

MS JOSEPHS

File Number:

NCC 741 of 2017

Judgment of:

Judge Terry

Hearing dates:

8, 9 and 10 October 2019

Date of Last Submission:

10 October 2019

Delivered at:

Newcastle

Delivered on:

15 November 2019

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondent:

YJP Legal

Counsel for the Respondent:

Mr Davies

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Town A

Counsel for the Independent Children’s Lawyer:

Mr Boyd

ORDERS

All previous Orders concerning the children [W] born … 2003, [X] born … 2005, [Y] born … 2007 and [Z] born … 2012 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children subject to Orders 3, 4 and 5.
In the event that a decision made in the exercise of the mother’s sole parental responsibility relates to a change in the children’s school enrolment or relocation from Town I the mother will provide the father with at least 21 days’ notice prior to any change occurring.
The mother is to advise the father of any decision that she has made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melsbach and Josephs

Details

AGLC: Melsbach and Josephs [2019] FCCA 2871
Case: [2019] FCCA 2871
Decision Date: 15 November 2019

CaseChat Overview and Summary

This case concerned parenting orders for four children, [W], [X], [Y], and [Z]. The dispute between the parents, Melsbach and Josephs, led to significant disagreement regarding the children's living arrangements, parental responsibility, and contact with the father. The matter was heard by Judge Terry.

The court was required to determine several legal issues, including the allocation of parental responsibility, the specific arrangements for the children's time with each parent, and the extent of communication permitted between the father and the children. Additionally, the court had to consider the children's views, their maturity, and any allegations of family violence in making its determination. The court also had to address the father's application for specific orders regarding his involvement in the children's lives and the mother's applications concerning parental responsibility and communication.

In reaching its decision, the court placed significant weight on the views expressed by the children, particularly the older children [W] and [X], who clearly stated their reluctance to spend time with their father. The court accepted the mother's evidence that the children had expressed these views and noted that the family report writer had also recorded the children's negative sentiments towards the father. While acknowledging the father's denial of hurting the children, the court found that the children had been exposed to adult discussions about the case. The court also considered the allegations of family violence but found that they were not made out on the balance of probabilities and were not determinative of the orders to be made.

The court made detailed orders discharging previous arrangements and granting the mother sole parental responsibility, subject to specific notification requirements for changes in school enrolment or relocation. The father was restrained from approaching the children or their home and school, and communication between the father and children was significantly restricted, with the mother facilitating communication initiated by the children and encouraging contact on significant occasions. The court also made orders regarding the exchange of information, including medical and school reports, and prohibited denigration of either parent in the presence of the children. The father was also restrained from removing the children from school, daycare, or the care of others.

Orders

Orders of the court

All previous Orders concerning the children [W] born … 2003, [X] born … 2005, [Y] born … 2007 and [Z] born … 2012 (“the children”) are discharged.

The mother shall have sole parental responsibility for the children subject to Orders 3, 4 and 5.

In the event that a decision made in the exercise of the mother’s sole parental responsibility relates to a change in the children’s school enrolment or relocation from Town I the mother will provide the father with at least 21 days’ notice prior to any change occurring.

The mother is to advise the father of any decision that she has made in the exercise of her sole parental responsibility.

The mother is restrained from using or attempting to use any surname other than the surname ‘Melsbach’ in respect of the children, either formally or informally for any purpose whatsoever.

The children shall spend time with the father in accordance with their wishes.

The father shall be permitted to attend all events involving the children that allow for parental attendance if he is invited to attend by the mother in writing including:

(a) Sporting fixtures;

(b) Extra-curricular activities that allow for parental attendance;

(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and social functions.

The father is restrained from approaching the children or coming within 100 metres of their home, school/s or any medical practice attended by the children without the prior written consent of the mother.

The father shall have no communication with the children except as provided below:

(a) The mother is to advise the children that if they wish to communicate with their father they are able to do so at any reasonable time and if the children initiate any such communication with the father, then the father is at liberty to respond to that communication.

(b) The mother shall use her best endeavours to encourage the children to communicate with the father by telephone or email on the following occasions of special significance:

(i) The father’s birthday;

(ii) Father’s Day;

(iii) Christmas Day;

(iv) Easter Sunday; and

(v) Each of the children’s birthdays.

(c) The father is permitted to forward to the children cards and gifts/parcels for special occasions such as birthdays, Christmas and Easter and the mother is to hand to the children any such cards and/or gifts/parcels addressed to the children from the father.

10.

The mother is to ensure that the father’s current mobile telephone number and email address are displayed on the front of their refrigerator in their home.

11.

The mother is to forward to the father any gifts, cards or artwork made or bought by the children for the father.

12.

Parental communication shall be by way of email only unless in the event of emergency or unless otherwise agreed in writing between the parents.

13.

The mother is to inform the father in writing as soon as practicable of any specialist medical appointments with any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner in relation to the children.

14.

The mother shall do all necessary things to authorise and direct any psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner who has consulted with the children to provide the father any and all information (including the children’s present condition and prognosis) in relation to the children and in the absence of such authority, these Orders are sufficient authority for the psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner to provide any and all information in relation to the children of the father.

15.

The mother shall do acts and things necessary to ensure that the father is provided with a copy of any reports by any such psychologist, psychiatrist, counsellor, specialist, therapist or other medical or health practitioner.

16.

In the event of the children being hospitalised or receiving urgent medical attention the mother shall notify the father as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

17.

Within 14 days of the date of these Orders and within 14 days of the child’s subsequent enrolment at any school, the mother shall do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever school the children may attend, that school can forward directly to the father copies of all the children’s school reports and merit cards, school photograph order forms and any written material pertaining to the children’s academic and extra-curricular activities.

18.

Each parent shall advise the other parent and keep the other parent advised of their current residential address, email address and contact telephone numbers (including both landline and mobile phone number if applicable) and will advise the other parent of any changes to these details within 48 hours of any such change occurring.

19.

Pursuant to Section 68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, and extracurricular activity or from the care of any person in whose care the mother has placed the children.

20.

Neither party shall denigrate (e.g. criticise or speak badly about) the other parent or members of their family in the presence or within hearing of the children and shall ensure that no third party denigrates (e.g. criticises or speaks badly about) the other parent or members of their family in the presence or hearing of the children.

21.

No party shall show or discuss any document related to these proceedings with the children, nor allow any third party to show or discuss any document related to these proceedings with the children.

22.

The mother shall bring the children to the Town A Office of Legal Aid NSW to meet with the Independent Children’s Lawyer at time mutually convenient time to her and the Independent Children’s Lawyer and not later than 14 days after being notified of the making of these Orders for the purpose of explaining these Orders to the children.

23.

The Independent Children’s Lawyer’s application for costs is dismissed.

24.

All outstanding applications are otherwise dismissed.

THE COURT NOTES THAT:

(A) The father has advised the court that he loves the children and would welcome any communication or contact with them.

Background

Background to the litigation

I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the [W] is 16 and [X] 14. They are teenagers and teenagers like to have some autonomy and some right to control their own world. They are old enough to physically take action if something happens which they don’t want [Y] is 12 but he picked up and was wielding variously a stick, a steel pole and a pair of pliers during the incident on 6 January 2018. He too might be too big and oppositional for the father to control if there was an enforced change of residence. I have considerable concern that these boys are big enough and old enough to physically resist attempts by the father to make them live with him. I must have regard to any family violence involving the children or a member of the children’s family. The father alleged that on several occasions the mother was violent to him. He alleged that she attempted to push him down the stairs when he challenged her about her channelling activities, threatened to stab him with a pair of scissors if he didn’t do what she wanted and leant across the children and grabbed him by the throat in a choking manner when he drove to Location FF to check up on [Y] shortly after separation. He also alleged that after separation she burned or threatened to burn his clothes and trashed his room. The mother alleged that it was the father was violent on the first occasion and that he grabbed her by the neck and she thought that he was going to push her down the stairs and then pushed her towards the bed. She denied threatening him with scissors or grabbing him by the throat. The issue of whether the mother burned or threatened to burn the father’s clothes or trashed his room was not properly addressed during the hearing and I cannot make findings about those allegations. The parties exchanged their views about the “pushing down the stairs” incident during a telephone conversation in 2018[33] and I cannot be satisfied that either version of events is reliable and not coloured by hindsight marred by bitterness. [33] Transcript of telephone conversation 7 August 2018 page 38 of the father’s affidavit filed on 20 September 2019 The father alleged that the mother was controlling during the relationship and aided and abetted by Ms F restricted opportunities for the children to have contact with the paternal family. He said that since separation he had been able to reconnect with his family. He alleged that the mother and Ms F had also severed the relationship between the children and his brother Mr EE. There is insufficient evidence for me to find that these allegations are true or that if it has any element of truth that it was behaviour which constituted family violence. I cannot be satisfied that any of the violence allegations are made out on the balance of probabilities and even if I could be, neither party argued that findings about family violence were determinative of the orders I should make about the children.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

S. 60CC (3) contains the additional considerations which are numerous. In some cases, and this is one, it is preferable to start by making findings about the additional considerations because they inform discussion about the primary considerations and the first of the additional considerations is any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to those views. The mother said that in October 2016 each of the children began saying that they did not want to spend time with the father. She said as follows:[Y] first expressed to me that he did not want to spend time with Mr Melsbach. He told me that he never wanted to see Mr Melsbach at all. The next to decide on this was [W]. Then [X] and [Z] each decided they were unhappy with the visits and all of them pleaded with me not to have to visit Mr Melsbach again without me being there to help them.[10][10] Mother’s affidavit paragraph 45 I accept the mother’s evidence that this occurred. Whether she should have allowed the children to “decide” is another matter but based on what the children said the mother stopped facilitating time, the father started proceedings and a family report was ordered. [W] told the family report writer in August 2017 that he did not want to see his father. She said as follows:[W] declined to see his father and stated ‘absolutely not. He makes fun of me and my mother and nearly strangled [Y] when he got up one night to have a glass of water.’[11][11] Family report paragraph 64 The family report writer said as follows about [X]’s views:When asked if he want to see his father he said ‘no because he is a jerk and considers that he is the best father. He won’t let us play video games, he would not let us role play – he hurts us he really hurts us.’[12][12] Family Report paragraph 65 The family report writer said as follows about [Y]’s views:When asked about his father [Y] stated that ‘he did not like him because he is not nice to me and we have not seen him for about three months. [Y] stated that his father had hurt him when he lived with us’ – he stated that his father had picked him up and ‘hurt me a lot.’ He could not describe any other incident when his father had hurt him. He said his mother does not hurt him but does not want him to see his father. [Y] acknowledged that they had talked about his father at home.[13][13] Family Report paragraph 71 The family report writer said as follows about [Z]’s views:[Z] said she could not see her father because she had been told ‘he was an idiot and never lets me wear what I want to wear’. She said that her Dad had never hurt her but no longer lives with the family.’ The father admitted in cross-examination that he had stopped the children role playing and did not like them sitting on the play-station when he visited but [W] admitted that he had not seen the father hurt [Y] and had only heard about it and the father denied ever hurting the children. The family report writer expressed concerned that both [W] and [X] were justifying their positions by relying on negative things about their father which they had not actually seen and that all of the children had been exposed to adult discussion about the issues in the case.