Menkes and Menkes

[2008] FamCA 1055

FAMILY COURT OF AUSTRALIA

MENKES & MENKES [2008] FamCA 1055

FAMILY LAW – PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out

Family Law Act 1975 (Cth)
Family Law (Shared Parenting Responsibility) Act 2006 (Cth)

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Menkes

RESPONDENT: Mr Menkes

FILE NUMBER: SYC 4101 of 2008

DATE DELIVERED: 25 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 25 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd with Mr Fermenis

SOLICITOR FOR THE APPLICANT: Shane Boesen Solicitor

COUNSEL FOR THE RESPONDENT: Mr Peattie

SOLICITOR FOR THE RESPONDENT: Patrick McHugh & Co

Orders

1. The mother's application for dismissal of the parenting application filed by the father on 18 August 2008 be dismissed.

2. On the Court's own motion, I appoint an Independent Children's Lawyer.

3. The Family Consultant is not to meet with the parties until the Independent Children's Lawyer has been appointed and the Family Consultant has had an opportunity to speak with the Independent Children's Lawyer. 

4. I grant leave to the Independent Children's Lawyer to inspect the Court file and take photocopies of any documents that may be of assistance.

5. I grant leave to the Independent Children's Lawyer to be able to issue any subpoenas that he or she may see as advisable for the purposes of obtaining material to assist the Court on the first day of the Less Adversarial Trial.

6. The Independent Children's Lawyer is not to meet with and interview the children until further order of the Court.

7. The Independent Children's Lawyer is to inquire from each of the parties’ legal representatives information in relation to the issue of subpoena and recommendations as to who the Independent Children's Lawyer might speak to in the nature of treating psychologists, psychiatrists and the like.

IT IS NOTED that publication of this judgment under the pseudonym Menkes & Menkes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4101 of 2008

MS MENKES

Applicant

And

MR MENKES

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother, Ms Menkes, seeking that the application of the father, Mr Menkes, filed 18 August 2008, be dismissed.  The father's application seeks parenting orders in relation to the two children, S, born in February 1998, now aged 10, and T, born in July 2000, now aged 8.  The father has not seen the children since 2005.

2. The application of the mother is based on the authority of Rice & Asplund [1979] FLC 90 725. The recent decision of the Full Court, SPS & PLS (2008) FLC 93-363, decided on 28 February 2008, was relied upon to illustrate the decision in Rice & Asplund is still good law notwithstanding the enactment of the Family Law (Shared Parenting Responsibility) Act 2006 and the coming into force of that Act.  In SPS & PLS, his Honour Warnick J, in dealing with an appeal from a Federal Magistrate, points out that:

   "At whatever stage of the hearing, the rule (as set out in Rice & Asplund) is applied, if the application should remain merely a manifestation of the best interest principles".

3. Indeed, as I see it, the rule evolves from the common experience of divorce courts over many decades of hearing children's cases that the best interests of children are not generally promoted by repetitive litigation and, in particular, a frequent change in their living arrangements.  Such a statement, however, is one of broad application and may be determined to be not appropriate in a case where the facts place it in an extraordinary or quite unusual category.  This case under consideration is, in my view, such a case.

4. The uncontested facts are that the two children, aged 10 and 8, have not seen their father since 2005.  Both children have been diagnosed as suffering from post traumatic stress disorder.  The mother has similarly been diagnosed.  The mother says the condition was caused by the father's behaviour and, in particular, his violence towards both she and the children.  She has filed a Form 4 "Notice of Child Abuse or Family Violence" which alleges domestic violence by the father against the mother.  The form was filed on 27 August 2008.  The mother said in that document she feared exacerbation of the children's condition if the father had contact with them.  The mother, through her Counsel, makes a direct threat that the child, S, may be so affected by the mere knowledge that he may be required to see his father that there is a risk of his attempting suicide.  There is evidence the child has been hospitalised for self harm.  Notwithstanding that submission, the mother tells me at paragraph 84 et al of her affidavit that she sat the children down in July 2008 after finding out about the father's application to the Court and said to them, "I found out today that your dad is getting married again.  I also found out that your dad would like to start having some contact with you both.  How would you feel about that?" She went on further in her affidavit to describe some uncontrollable behaviour of the boys which she attributes as responsive to her inquiry.

5. The Rice & Asplund argument is platformed from two sets of orders and recitals made between the parties in the Local Court.  The orders were consent orders dated 8 November 2006 and 21 February 2007.  The orders are almost identical in their terms.  Neither provided for any immediate contact between the father and the children.  It is common ground there has been no hearing on the merits of the case.  It is an extraordinary case where children aged 10 and 8 have not had any time with their father for three years.  There has been no contact between them at all.  This occurs in circumstances where the father lives relatively close to where the children live, and he wishes to spend time with them.  The father has re-married and his wife gives evidence about his good relationship with her child.  The father denies the allegations of violence made against him by the mother.

6. Clearly, this is a case which needs to be treated sensitively by the Court.  The children's safety and that of their mother needs to be protected.  Just as children have a right to live in a safe place, protected from violence, they also have a right to know each of their parents and, if appropriate, spend time with each and develop a meaningful relationship.  Having regard to all those matters, I conclude the father should be allowed to commence proceedings which will consider afresh parenting orders for the subject children. I propose to refuse the application of the mother and allow the father to proceed at this stage with his application. 

7. The fact that I have refused the mother's application today based on the authority of Rice & Asplund would not, in my view, prevent a trial Judge from making an order at the conclusion of a trial which dismissed the father’s application based on the Rice & Asplund guideline.  The authorities make it clear that the Rice & Asplund applications can be considered as a threshold or during or at the conclusion of a contested trial in relation to the parenting matters. As a consequence of the above, I would dismiss the mother's application.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:     

Date:  4 December 2008