Melzer and Powles

[2020] FamCA 715

FAMILY COURT OF AUSTRALIA

MELZER & POWLES [2020] FamCA 715

FAMILY LAW – CHILDREN – INTERIM – where the matter was on track for trial – where, in the lead up to trial, the father was charged with serious indictable charges relating to alleged offences against his de facto partner – where there is other concerning evidence in relation to the father’s behaviour – where the Court finds the children could be at risk of harm in the father’s unsupervised care – earlier interim orders which provide for unsupervised time with the father varied for the children to spend supervised time with the father at a contact centre.

Family Law Act 1975 (Cth), s 60CC

Vallans & Vallans (2019) 60 Fam LR 193

APPLICANT: Ms Melzer

RESPONDENT: Mr Powles

FILE NUMBER: BRC 3006 of 2016

DATE DELIVERED: 15 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 15 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Cullen

SOLICITOR FOR THE APPLICANT: Lewis & Mcnamara Solicitors

THE RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER: Ms E Rowan, Charltons Lawyers

Orders

1. That the Independent Children’s Lawyer provide a copy of the document marked as Exhibit 1 today to the solicitors for the mother and to the father.

2. That the children, Y born … 2011 and X born … 2013 (“the children”), spend time and communicate with the father supervised by officers of B Contact Centre, C Town for up to two (2) hours per fortnight, as can be facilitated by B Contact Centre, on the following basis:

   (a)that the mother and father shall as soon as possible undertake further intake procedures as required by B Contact Centre to permit the supervised visits to commence; and

   (b)the costs of B Contact Centre be paid by the father.

3. That the children shall communicate with the father weekly, commencing Wednesday 15 July 2020 and each Wednesday thereafter, between the hours of 6.30pm and 7.00pm, on the following basis:

   (a)the father shall initiate the telephone call;

   (b)the mother shall ensure the children are available to receive the call and speak with the father; and

   (c)the mother shall be entitled to hear the exchanges by telephone between the father and the children and may interrupt the call if the father makes any comments about:

   (i)these proceedings;

   (ii)his criminal proceedings and relationship with Ms G; and

   (iii)any derogatory or hurtful remarks about the mother to the children.

4. That these proceedings be adjourned for Directions Hearing before a Registrar at 2.45pm on 5 November 2020 in the Family Court of Australia at Brisbane.

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 Melzer & Powles 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 BRISBANE

FILE NUMBER: BRC 3006 of 2016

Ms Melzer

Applicant

And

Mr Powles

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. Litigation between the mother and father in this case of two children, Y who is soon to turn nine and X who is seven, has been ongoing in one form or another since an application was made in April 2016 when the mother sought a Recovery Order against the father.  The parties, it seems, separated in July 2015, with the mother and children moving to a refuge.

2. The mother, in her trial Affidavit for a trial that sadly had to be aborted because of the events which I will soon describe, has raised, previously and continually, concerns about the father’s violence towards her and his inability to manage what might be described generally as impulsive, violent, coercive and controlling behaviour.

3. Notwithstanding those overarching concerns, and with the benefit of two family reports from Court Expert Ms D, as well as a psychiatric report of Dr F, the parties had progressed from supervised time having taken place at B Contact Centre in the C Town area for a period of over two years from June 2016 to October 2018, to time that was initially supervised by the paternal grandmother (before she went travelling) and then by what the father described as his long-term domestic partner, a Ms G.

4. Notwithstanding the mother’s concerns, but no doubt reflective of what, on the evidence, seemed to be the enjoyment the children were deriving from spending time with the father, the matter that was listed for trial before me to proceed on 15 June 2020 had resolved to a dispute not about whether time should be supervised, but whether in fact the father’s claim for effectively equal time or more time than the unsupervised time then being enjoyed, should be increased.

5. Notwithstanding the Court’s direction when setting the matter down for trial that the affidavit should deal with matters of fact which were in dispute and likely to touch upon the issue in dispute, namely the amount of unsupervised time, the mother’s affidavit, one might say almost without acceptance of that direction from the Court, provided significant historical detail.  In my view, it is open to at least conclude that although the mother was trying to balance the children’s need to maintain enjoy time with the father, her concerns about the father’s past contact had not been alleviated by the lull in evidence of his behaviour erupting.

6. There have been concerns about the father’s drug use.  Ms Rowan, the Independent Children’s Lawyer in this matter who has been the Independent Children’s Lawyer for some time, identified lack of consistency by the father in attending to drug testing.  The father, who is on a Disability Support Pension, in an Affidavit received yesterday suggests that, at least on one occasion, he did not receive the test result.  Ms Rowan today indicated that a test result in respect of a request made on 13 May 2020, which would have been just a month or so before the trial was due to commence, had returned a negative result.  That is, no detection of illicit substances.

7. The issue in this case is that, whilst we were tracking towards the trial that had been listed for 15 June 2020, it came to the attention of the Independent Children’s Lawyer and the solicitor for the mother that a serious criminal offence has been alleged against the father.  It is said that on or about 27 April 2020, and prior to that on 13 April 2020, there are a number of offences directed against the father’s former partner, Ms G, who as I recall is a legal practitioner in the C Town area.  Exhibit 1, submitted by the Independent Children’s Lawyer today, identifies the charges which include the indictable charge of assault occasionally bodily harm, choking, suffocation, strangulation in a domestic relationship and wilful damage.

8. These are extremely serious charges, and as Ms Cullen I think correctly identifies, and even though the presumption of innocence remains for the father, are to be seen within the context of other evidence before the Court yet to be tested, including disgraceful text messages sent in or about May 2016 which I have referred to today and is in the mother’s trial Affidavit at “M-9” and at “M-10, and the concerns raised by Dr F and the concerns raised by the family report writer.

9. One of the features of this case which has been difficult is that Mr Powles has had to rely upon directly briefed Counsel, Mr O’Neill. That was a benefit to Mr Powles and probably a benefit to the process. Sadly, Mr O’Neill, before the trial, gave notice that he had a bout of ill health; was unable to take on the brief, and therefore the Court was being confronted at or about the time that these charges were apparently being laid with the dilemma of the father being unrepresented and the impact, then, of section 102NA of the Family Law Act 1975 (“the Act”).  When the Court first became aware of the charges, and on the urgent ex parte application of the mother, the Court ordered that the orders for time for the father to spend with the children should be suspended.

10. Today I heard submissions by the Independent Children’s Lawyer Ms Rowan, Ms Cullen of Counsel for the mother and the father who is unrepresented.  Ms Rowan and Ms Cullen say that this recent serious range of criminal charges, although yet to be tested, reveal a concerning, at least, behaviour by the father which until properly explained or dealt with means the children could be at risk, if time was unsupervised, within the meaning of section 60CC(2)(b).  I make no finding that they will be at risk, but I make a finding that they could be at risk based on this serious charge.

11. As the power is made clear, although section 60CC(2)(a) requires the Court, as a primary consideration so named in the Act to give consideration to the benefit of the children having a meaningful relationship with both of their parents, the risk factors are to be given greater weight. In my view, sadly at this stage, I could not support unsupervised time. Although the father says his mother is now back and could supervise time, there is no evidence before the Court of her willingness to do so; her preparedness to do so, and whether she is an appropriate person in view of the significantly serious criminal charges the father now faces.

12. In the circumstances, the Court varies the Order made 29 January 2020 providing, until further order, that the children spend time and communicate with the father, supervised by officers of B Contact Centre C Town for up to two hours a fortnight on the following basis:

    a)The mother and father shall, as soon as possible, undertake further intake procedures as required by B Contact Centre to permit the supervised visits to commence; and

    b)I will order that the costs of B Contact Centre be paid by the father.

13. The children shall communicate with the father – and there is no reason why it cannot commence tonight – weekly, commencing Wednesday, 15 July 2020 and each Wednesday thereafter between the hours of 6.30pm and 7.00pm on the following basis:

    a)The father shall initiate the call;

    b)The mother shall ensure the children are available to receive the call and the children are available to speak to the father;

    c)The mother shall be entitled to hear the exchanges by telephone between the father and the children and may interrupt the call if the father makes any comments about:

    i)these proceedings;

    ii)his criminal proceedings and relationship with Ms G; and/or

    iii)makes any derogatory or hurtful remarks about the mother to the children.

14. I should indicate that Counsel for the mother made a submission that she says had been invited by me on the last occasion, which could well be true, about varying the Order made that the parents have equal shared parental responsibility.  Consistent with recent Full Court decisions such as Vallans & Vallans (2019) 60 Fam LR 193, there needs to be a principal reason to move from the presumption of equal shared parental responsibility or, in this case in an analogous way, an earlier order made by consent. There is no evidence before me that the mother needs an order for sole parental responsibility so as to properly make decisions for the children of a major long-term nature. In the circumstances, I am not prepared to vary the order made about the parents having, on an interim basis, equal shared parental responsibility.

15. The matter must now return to the Registrar’s resolution phase because it is very unclear when it will be possible for the Court to have a better understanding of when the serious criminal charges facing the father will have been dealt with.  It is the case that he believes that in 2020 the Magistrates Court in C Town will “process” the charges, but as Ms Rowan, an experienced local solicitor, indicated, criminal charges of the indictable nature may well take more than 12 months to get to trial in the District Court in that region, some of which is associated with COVID-19 restrictions on jury trials.

16. In those circumstances, it is not appropriate that I continue to manage this matter as I had towards the trial.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 15 July 2020.

Associate: 

Date:  31 August 2020