Mertz & Mertz (No 2)
[2024] FedCFamC2F 53
•18 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mertz & Mertz (No 2) [2024] FedCFamC2F 53
File number(s): ADC 2893 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 18 January 2024 Catchwords: FAMILY LAW – PARENTING – Review of a senior judicial registrar’s decision – Three children aged 11, 8 and 7 - Parents in high conflict - Where the registrar made orders for the children to live with the mother – Where the eldest child refuses to live with the mother and continues to return to the father – Where the mother seeks a recovery order – Where the father seeks a review of the totality of the registrar’s decision on an urgent basis –Where all previous parenting orders are discharged and interim orders made to protect the children from psychological and emotional harm. Legislation: Family Law Act 1975, ss 60B, 60CC, 60CC(2)(a), 60CC(3), 69ZN
Federal Circuit and Family Court of Australia Act 2021, s 256
Federal Circuit and Family Court of Australia (“Family Law”) Rules 2021, r 14.07
Cases cited: Amini v Clark [2023] FedCFamC1F 486
Banks & Banks (2015) FLC 93–637
Re K (1994) FLC 92-461; (1994) 17 Fam LR 537
Division: Division 2 Family Law Number of paragraphs: 96 Date of last submission/s: 17 January 2024 Date of hearing: 17 January 2024 Place: Canberra Counsel for Applicant: Ms J Abbey KC Solicitors for Applicant: Purdie Legal Counsel for Respondent: Ms T Lewis Solicitors for Respondent: Norman Waterhouse Lawyers ORDERS
ADC 2893 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MERTZ
Applicant
AND: MS MERTZ
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
18 JANUARY 2024
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.All previous orders are discharged.
Living and time arrangements
2.The child X born in 2015, and the child Y born in 2016 are to live with the mother.
3.X and Y are to spend time with the father:
(a)On Thursday 18 January 2024 and each alternate Thursday thereafter from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school Friday (or 3:00pm if a non-school day).
(b)On Friday 26 January 2024 and each alternate Friday thereafter from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school the following Monday (or 3:00pm if a non-school day.
(c)At such other times as agreed between the parties and confirmed in writing.
4.The child Z born in 2012 is to live with the father: and
(a)Z is to spend time with the mother in accordance with his wishes; and
(b)At the times agreed between the parties and confirmed in writing.
5.Unless otherwise agreed and confirmed in writing, X and Y are to spend time with the parents for special occasions as follows:
Easter 2024
(a)With the mother from the conclusion of school on Easter Thursday (or 3:00pm if a non- school day) until 10:00am on Easter Sunday;
(b)With the father from 10:00am Easter Sunday until the commencement of school on Tuesday (or 8:00am if a non-school day);
Children’s Birthdays
(c)With the parent who does not have care of the children on each of their respective birthdays:
(i)in the event of a school day, from the conclusion of school until 4:30pm;
(ii)in the event of a non-school day, from 10:00am until 2:00pm;
For Mother’s Day
(d)With the mother from 4:00pm on the Saturday immediately preceding Mother’s Day until 4:00pm that day
For Father’s Day
(e)With the father from 4:00pm on the Saturday immediately preceding Father’s Day until 4:00pm that day.
Handoverst
6.All handovers that do not take place at the children’s school or extra-curricular activities take place at the mother’s home with the father to pull up to the kerb adjacent to the mother’s front door, remain in his vehicle and the mother to remain at the front door of her home at all times with the children passing from the vehicle to the home or vice versa SAVE AND EXCEPT that the father shall be permitted to exit his vehicle strictly for the purposes of removing the children’s bicycles and bags from his vehicle.
Electronic communications
7.Each parent is to facilitate video or telephone calls to the other parent on any reasonable request from any of the children when in their care.
8.Each parent is to facilitate video or telephone calls to the children’s siblings on any reasonable request from any of the children when in their care.
9.The mother is to facilitate X and Y having video or telephone calls initiated by the father every Monday and Wednesday between 7.00pm and 7.30pm when they are in her care.
10.The father is to facilitate X and Y having video or telephone calls initiated by the mother every Saturday between 7.00pm and 7.30pm when they are in his care.
11.For the purposes of Orders 10 and 11, the calls are to be made and facilitated as close to 7:00pm as possible and go for as long as X or Y wants them to go for within reason.
12.NOTING that Z has use of a mobile phone provided to him by the father, the father is to provide the mother with the service number for that device.
Communication between the parents
13.Except in the case of an emergency the parents are to communicate only using the Our Family Wizard application and it is noted both parents have registered and are doing that already.
Extracurricular activities
14.Both parents are to facilitate the children participating in their respective extra-curricular activities that they would ordinarily attend.
15.Unless otherwise agreed and confirmed in writing, the parents are restrained by injunction from attending at the children’s schooling or extracurricular activities or events when the activity or event is occurring outside of the time the child participating in the activity or event is not in their care pursuant to these orders.
16.The parent with whom the children are not spending time is not to attend school pick-up unless agreed between the parties.
17.On a case by case basis, the parents are to separately consult each child with respect to their respective views and wishes concerning their participation in extracurricular activities and are to confirm in writing their understanding of the children’s views and wishes to the other parent.
18.Without first complying with Order 17, the parents are:
(a)Not to unilaterally cancel any extant extracurricular activity that the child/ren is/are presently involved in;
(b)Not to enrol the child/ren in any new extracurricular activity that the child/ren is/are not presently involved in.
19.Notwithstanding Orders 17 and 18, by consent, both parents are to do all things to ensure Z is enrolled in B Sports Club.
Restraints
20.The parents are restrained and an injunction is hereby granted restraining them from:
(a)Collecting the children from school or any other locations save and except for in compliance with the time spending Orders or with the written consent of the other party;
(b)Attending at the other's home without the express written consent of the other save and except for in compliance with these Orders;
(c)Denigrating the other in the presence of the children or in the children's school grounds, discussing legal matters and having adult conversations with any of the children;
(d)Discussing these proceedings in the presence or hearing of the children or permitting any other person to do so;
(e)Consuming alcohol to excess and/or any illicit substance in the presence of any of the children or whilst they are in his or her care or prior to the children coming into their care;
(f)Posting images of any or all of the children on social media or permitting the use of their images or voices on social media, without the other party’s express consent;
(g)Communicating with the other party other than via the Our Family Wizard application except in the case of a genuine emergency;
(h)Physically disciplining or verbally abusing the children or from allowing any other person to do so.
Counselling
21.The parents are to do all acts and things:
(a)To enable Z to forthwith attend upon Ms D for individual counselling and for the purposes of reunification therapy between Z and the Mother with a report to be published with respect to the progress of same upon Z attending not less than four (4) sessions with Ms D.
(b)For the children to attend upon Ms D for psychological support and to communicate with Ms D at her discretion and to provide Ms D with a copy of Ms C’s Family Report, any Affidavits filed by the parties in these proceedings requested by Ms D and a copy of any written reasons for judgment on 18 January 2024.
22.Neither party is to be involved in/or participate in the children's therapeutic sessions unless otherwise directed by the treating psychologist.
23.Both parties are to follow the recommendations made by Ms D pertaining to the structure of each child's appointments.
24.The parties participate in co-parenting counselling with Ms E and the parties are permitted to provide to Ms E a copy of Ms C’s Family Report, any Affidavits filed by the parties in these proceedings requested by Ms E and a copy of any written reasons for judgment on 18 January 2024.
25.The parties are to share equally the costs of the child/ren’s engagement with Ms D and are to meet their own costs of their own engagements with Ms D and Ms E.
Independent Children’s Lawyer
26.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to separately represent the interests of the children the subject of the proceedings and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
27.That to facilitate the appointment of the Independent Children’s Lawyer, the parties’ respective solicitors forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within seven days.
28.At the request of the ICL, the parties are to forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the children may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the children from such person or agency.
Procedural
29.The Father is permitted to produce in proceedings before Court for an intervention order commenced privately by application of the mother, a copy of the Family Assessment Report published by Ms C on 18 December 2023 and a copy of any written reasons for judgment on 18 January 2024.
30.All extant interim applications are dismissed.
31.The matter remains adjourned in Chambers before a Senior Judicial Registrar on 9 February 2024.
THE COURT NOTES THAT:
A.Orders 6 and 20(b) of these orders, which provide for the father to attend the mother’s home for the purposes of changeover or with express written consent of the mother, are inconsistent with the interim Intervention Order made by the Court in late 2023 which prohibits the father from going or staying within 30 metres of the mother or her residence.
B.Orders 13 and 20(g) of these orders, which provide for the parties to communicate only by Our Family Wizard except in the case of an emergency, are inconsistent with the interim Intervention Order which state that the parties need only utilise Our Family Wizard for discussion of facilitating access to the children and to exchange information about their welfare.
C.Pursuant to s68Q of the Family Law Act 1975, to the extent of these inconsistencies, these family law orders prevail.
D.The Court is satisfied that the orders made today are in the best interests of the children in circumstances in which the mother is protected by the interim Intervention Order.
E.The Court is satisfied the orders present no unacceptable risk to the children.
F.The Court will provide a copy of these orders to the Registrar of the Court, the Commissioner of SA Police, and the Chief Executive of the South Australian Department for Child Protection (the DCP).
AND IT IS FURTHER NOTED THAT:
G.Order 8 of the interim Intervention Order dated late 2023 states that the father must not follow or keep the mother under surveillance including tracking by GPS or otherwise. These orders are inconsistent with that order to the extent that no similar order restraining the father has been made by this Court because: it was not deemed appropriate or necessary with respect to the father, and; locating a child’s mobile phone may be beneficial to the parents’ care of a child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD
INTRODUCTION
These are child related proceedings concerning three children – Z (11), X (8) and Y (7).
Before me is an Application for Review in relation to Orders made on 21 December 2023 following a defended interim hearing on 19 December 2023. That hearing encompassed interim orders sought in the initiating process and the initial response plus three subsequently filed AIP’s. The Application for Review is for the totality of the Orders and is pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 and rule 14.07 of the Federal Circuit and Family Court of Australia (“Family Law”) Rules 2021 and is an original hearing.
Also before me is an Application in a Proceeding for a stay of the orders pursuant to r 14.06 of the Family Law Rules.
Also before me is an Application in a Proceeding seeking different orders to those sought in the Application for Review.
The parties confirmed at the outset that all extant applications are being heard together and material filed in any of the applications or responses is available in the others. In other words, there was to be one set of orders arising out of these proceedings dealing with all interlocutory matters. Both parties confirmed that no one is seeking an order that is not a parenting order under Part VII of the Family Law Act 1975 (“the Act”).
The Senior Judicial Registrar’s reasons for the orders made on 21 December 2023 were not available by way of transcript or as written reasons for judgment. The parties and the Court were content to nevertheless proceed in circumstances where there was a far greater need to quell the immediate controversy before the court and have workable interim orders made.
For the reasons that follow, all previous parenting orders were discharged and interim orders were made for X and Y to live with the mother and spend one plus three nights per fortnight with the father, and for Z to live with the father and spend time with the mother in accordance with his wishes.
BACKGROUND & PROCEDURAL HISTORY TO DATE
The parties are the parents of the children. They commenced a relationship in 2006 and cohabitation in 2009 and married in 2011. There are three children of the marriage born in 2012, 2015 and 2016. Separation occurred in September 2022 though the parties remained living under the same roof. There were frequent instances of conflict. In late 2022 the father requested police attendance amidst an argument who arrived and in turn called an ambulance for Z who was unwell. During high conflict in late 2022, Z called police. The mother moved out with the children into an investment property in early 2023 which is relatively close by.
On 29 June 2023, the father commenced proceedings by his Initiating Application seeking interim and final orders for progression of time from four nights plus four days per fortnight to week about time over about 18 months.
On 2 August 2023, the mother filed a Response seeking interim orders that the children live with her and spend time with the father two afternoons each week and one night per fortnight. The mother sought final orders in accordance with recommendations of a Family Assessment Report.
On 3 August 2023, orders were made by consent in the terms of the interim orders sought by the mother with the notation that they were consented to by the father only to cover the period until the interim hearing on 24 October 2023 where he would pursue the orders he sought.
On 28 August 2023, the mother filed an Application in a Proceeding that be heard on an urgent basis for the father’s time with the children to be informally supervised pending a psychological assessment.
On 14 September 2023, Orders were made by consent for the appointment of Ms C as the single expert witness to prepare a Family Report and for the parties to communicate only by a parenting app. The 24 October 2023 hearing date was vacated and the matter listed for interim hearing on 19 December 2023.
On 25 September 2023, the father filed his Response to the mother’s Application in a Proceeding of 28 August 2023.
On 4 and 13 November 2023, there were interviews with Ms C.
On 27 November 2023 there was an incident of high conflict between Z and the mother after which Z commenced to live with the father of his own accord.
On 29 November 2023, the mother filed an Application in a Proceeding that be heard on an urgent basis for Z to be delivered up to the mother or a recovery order issue.
Also on 29 November 2023, the father filed an Application in a Proceeding that be heard on an urgent basis seeking a change of residence for all three children.
In late 2023, the mother filed an application for an Intervention Order in Court.
On 6 December 2023, the father filed his Response to the mother’s Application in a Proceeding of 29 November 2023.
On 7 December 2023, the mother filed her Response to the father’s Application in a Proceeding of 29 November 2023.
In late 2023, an Intervention Order was issued by Court and further listed in late 2023.
On 13 December 2023, following Z residing with the father, there were further interviews with Ms C.
The Family Report of Ms C was released on 18 December 2023 which included recommendations that: Z remain living with the father and spend time with the mother on an increasing basis; X and Y remain living with the mother and spend time with the father on an increasing basis; and, by the time X starts high school all children be living with each parent on a week about basis.
On 19 December 2023, there was a defended interim hearing before a Senior Judicial Registrar and on 21 December 2023, Orders were made including that all three children live with the mother and spend time with the father for one plus three nights per fortnight and all extant interim applications were dismissed.
On 22 December 2023, the father filed an Application for a Review of all of the orders made by the Registrar and for orders in place of them including that X and Y live with the mother and spend time with father for one plus three nights per fortnight and that Z live with the father and spend time with the mother for one plus three nights per fortnight.
The hearing of that application was listed for 17 January 2024.
On 22 December 2023, the father attempted to file an Application in a Proceeding to stay the orders of 21 December 2023 pending the outcome of the review.
In late 2023, the father delivered Z into the mother’s care. Soon after, Z ran away and phoned his father. The mother caught up to Z in her car and Z shouted at her and ran off. The mother called the police. Z went to a nearby family friend’s home and the father collected him from there.
In late 2023, the father delivered Z into the mother’s care. About an hour later, the mother refused a request from Z to call the father and Z rode his bike away to his father’s. The father deposed Z arrived at his house very upset. The mother deposes Z was not upset at all and enjoying himself.
In late 2023 Z was not in the mother’s care contrary to the orders.
In early 2024, the father delivered all three children into the care of the mother. Soon after there was an incident of conflict between Z and the mother in the presence of X and Y. Z was crying and rode off on his bike to the father’s. X wet the bed that night and slept for 1.5 hours the following day, neither of which she had done for a long time.
After each instance the mother sent demands to the father for him to return Z into her care. In late 2023 and (early 2024) the mother requested a recovery order issue (pursuant to the notation on 21 December 2023) as Z had not returned to the mother. On 2 January 2023 Orders were made for directions or possible interim hearing on 5 January 2023.
On 3 January 2024, the father filed an Amended Application in a Proceeding seeking different orders to those sought on 22 December 2023 being that all three children live with him, X and Y spend time with the mother for three plus two nights per fortnight and Z spend graduated time with the mother. The father’s affidavit in support describes a highly volatile period since late 2023, Z’s abject refusal to spend time with the mother and emotional harm to X and Y witnessing the ongoing conflict between Z and the mother and the mother and the father.
Also on 3 January 2024, the mother filed an affidavit setting out her evidence with respect to the period since 21 December 2023.
On 6 January 2024, orders were made by consent for all extant applications to be listed returnable on 17 January 2024.
On 11 January 2024, the mother filed her Outline of Case Document attached to which is the minute of orders she seeks from the hearing on 17 January 2024. They include orders that: the father’s review application be dismissed and to retain the 21 December 2023 Orders; a recovery order issue in the event Z does not return to her care; and, the father be restrained by injunction from having Z in his care whenever he should be in the mother’s care.
On 15 January 2024, the father filed his Outline of Case Document attached to which is the minute of orders he seeks from the hearing on 17 January 2024. They include that: all three children live with him; X and Y spend time with the mother for three plus two nights per fortnight; Z spend time with the mother in accordance with his wishes; and, Z commence counselling immediately to try and restore Z’s relationship with the mother.
On 15 January 2024, the mother filed a Response to the father’s amended Application in a Proceeding of 3 January 2024 that his application for a review and his amended Application in a Proceeding be dismissed and a recovery order issue if Z is not delivered into her care by 19 January 2024.
In early 2024, the Intervention Order proceedings in Court are listed for a pre-trial conference.
MATERIAL
I have relied upon the following material:
(1)Family Assessment Report by Ms C and dated 18 December 2023.
In the father’s case:
(2)Affidavit of Mr Mertz filed 22 December 2023;
(3)Affidavit of Mr Mertz filed 3 January 2024; and
(4)Outline of Case Document filed 11 January 2024.
In the mother’s case:
(5)Affidavit of Ms Mertz filed 3 January 2024;
(6)Affidavit of Ms Mertz filed 15 January 2024;
(7)Outline of Case Document filed 15 January 2024.
I have also had regard to the parts of the many affidavits previously filed by the parties in the proceedings where referred to by counsel for the parties in their arguments or submissions.
The Family Assessment Report
Unusual for an interim hearing, there was in this case the benefit of having in evidence a complete Family Assessment report prepared by a joint single expert (“the Expert”). The father’s position strives to align with the findings and opinions of the Expert and unsurprisingly the father’s orders are largely in harmony with the Expert’s recommendation save for the departure from the relatively intense regime recommended for reintroduction of time between Z and the mother - In light of the rapid deterioration in the circumstances since late 2023 which post-date the report, and the level of cooperation as between the parents that would be required to make the Expert’s proposed regime work.
The report is particularly problematic for the mother because the Expert’s findings and opinions largely are not in alignment and do not support the mother’s case with respect to her allegations about the father, her own attitude and relationship with the children and the views and wishes of the children. Further, essentially the mother’s case is that on all of the same information, the Expert is correct with her recommendations in relation to X and Y but not in relation to Z.
The mother’s position in relation to the report was unremarkable being that:
(a)The Expert could not have been able to consider all of the material produced in this complex case and a proper reconciliation of it would reveal that the mother’s case simply must be preferred over the father’s;
(b)Coercive and controlling behaviour is nuanced and the father has the ability to present in one way to the Expert but act in another to the mother such that he was able to elicit unreliable opinions from the Expert.
There is no evidence in support of these contentions. The report was prepared by the jointly appointed single expert whose credentials and independence were not challenged. There was no suggestion that the report did not comply with the statutory requirements for expert evidence. I have no reason to disregard or to read down the Expert’s report and I have not done so. Of course, that does not bind the Court in the future that may have the benefit of cross-examination of the Expert.
ISSUES
Despite there being an inordinate amount of material produced and filed by the parties in the relatively short life of these proceedings to date, there was relatively little in issue. In relation to the competing orders, in issue was the living and time arrangements on an interim basis. The issues that go to informing the determination of what living and time arrangements on an interim basis are in the best interests of the children were:
(a)What interim orders best maintain and promote a meaningful relationship between each of the children and both of their parents.
(b)What interim orders are necessary to protect the children from psychological or emotional harm including their exposure to conflict.
(c)What weight is to be given to the views and wishes of the children as recorded by the Expert.
(d)What is the likely effect of any changes on the children including separation of Z from X and Y.
(e)Does either parent have an incapacity to provide for all of the needs of the children, including emotional and intellectual needs.
(f)What impact do the allegations of family violence have on an interim basis and what impact do the Intervention Order proceedings have.
(g)What orders are least likely to lead to the institution of further proceedings.
The issues specified above are determined in the Determination of Issues & Best Interests of the Children section below. There were a host of lesser issues in which the parties did not agree which are identified and dealt with in The Orders section below.
RELEVANT LAW
I refer to and adopt what was said by McGuire J in Amini v Clark [2023] FedCFamC1F 486 [at 11-14] not because it is of precedent setting value, but it is a concise form of words on the authorities, which applies neatly in this case:
[11] The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that, being an Application for Review, this hearing proceed as a hearing de novo.
[12] The orders that I am to make are parenting orders. As such I am to have the child’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining those best interests, I am to reference the parties’ proposals and the probative evidence to the numerous mandatory considerations set out at section 60CC(2) and (3) of the Act, against the background and context of section 60B, which sets out the objects and principles as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[13] Additionally, being as it is at an interim stage of the matter, I am guided by the well-established authority in Goode & Goode (2006) FLC 93-286 , which observes that interim parenting applications are an abridged process where the scope of enquiry is restricted and the Court often cannot make findings of credit on disputed fact, rendering agreed facts, current circumstances and proposals and prior care arrangements as significant.
[14] I informed the parties during the hearing and for their benefit I will repeat it, I am not bound to decide between their two proposals. Rather, I am bound by the Act to determine the best interests for the child as my paramount consideration, and I will make orders which align with those interests, regardless of any proposals.
Further, in Banks & Banks (2015) FLC 93–637 at [48]–[50], the Full Court stated, that, in the context of interim proceedings, the court should adopt a practical approach which was described in the following terms;
48. It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
DETERMINATION OF ISSUES & BEST INTERESTS OF THE CHILDREN
In arriving at my decision, I have had regard to all of the considerations set out in s 60CC of the Act. In determining the issues identified in this case, reference is made to the most relevant s 60CC considerations.
What interim orders best maintain and promote a meaningful relationship between each of the children and both of their parents – Section 60CC(2)(a)
There seems no contest that all of the children have a meaningful relationship with each of their parents. Each parent’s maintenance and promotion of the children’s relationship with both parents looms as a significant challenge in this family. Particularly now that with respect to Z’s relationship with his mother, the starting point is restoration. Contrary to the mother’s submissions, I do not find that situation to be a result of anything engineered by the father.
For the purposes of this interim hearing, on the evidence to date, I form the views that:
(a)The father has demonstrated a commitment to maintaining and promoting the children’s relationships with their mother as something that is important and beneficial to the children;
(b)The mother has not been able to demonstrate a recognition of the importance of a beneficial relationship between the children and both of their parents. The mother seems focussed on a contest and pursuing arrangements that elevate the children’s relationship with her as superior and more important to that of the father.
The mother does not accept the Expert’s findings with respect to the children’s relationships with the father and with her. The mother does not want an independent children’s lawyer appointed. The mother has not taken any genuine steps to obtain professional counselling or support for the children to date whilst they have been in her care and undoubtedly exposed to traumatic situations. It is troubling that the mother resists or rejects independent evidence or support that does not support her position.
What interim orders are necessary to protect the children from psychological or emotional harm including their exposure to conflict – Section 60CC(2)(b)
The mother alleges the risks that are posed by the father to the children in his care are:
(a)His mental health vulnerabilities; and
(b)His consumption of alcohol to excess and illicit drugs use.
The father denies these allegations in the sense that they are categorised as risks. The Expert considered both of these and found the objective evidence lacking. I too find the objective evidence lacking. I do not consider that the children are at risk of harm in the care of the father.
The mother submits that there are no risk issues to the children when in the care of the mother. The father submits that there is a risk of psychological and emotional harm to all of the children in the care of the mother by way of:
(a)Their exposure to the conflict between the parents; and
(b)The conflict between Z and the mother; and
(c)X and Y’s exposure to the conflict between Z and the mother.
The children have been exposed to intense conflict at least since late 2022. Z has called the police himself and has been taken by ambulance to hospital. The Expert is clear that Z has not been able to reconcile that for himself:
194. [Z] reported that since his hospitalisation, he had not spoken to anyone about what had occurred and his feelings. [Z] claimed that [X] and [Y] were unaware about his experiences as they were not present and his parents had not sought to talk to him about what had occurred. [Z] went on to tearily report that whilst he continued to think about the incident, he believed his family had forgotten about what had happened as they had not talked about it since. Such comments were concerning to the writer as it suggested that neither parent had sought to support [Z] since this time or prioritised his emotional health.
The mother contends that the orders she seeks will protect the children from exposure to the conflict by ensuring that Z is in her care and not the father’s care. Despite the mother’s best intentions and perhaps even her core belief, that approach has not been working for Z. In fact, it is having an increasingly traumatic effect upon Z and is becoming traumatic for X and Y.
The orders sought by the mother are an extension of the intensity of her beliefs irrespective of Z’s behaviour, Z’s clear and expressed feelings and wishes, the father’s expressed observations and the Expert’s recommendations. I do not accept the evidence supports the mother’s submission that all these adverse effects are mere consequences of Z being in the father’s care and not in her care. As have been starkly demonstrated since late 2023, the children’s ongoing exposure to the mother’s plan of unquestionable forced and enforced care arrangements are having a harmful effect on the children.
What weight is to be given to the views and wishes of the children as recorded by the Expert – Section 60CC(3)(a).
All three children have expressed views and wishes to the Expert. X and Y are young and their expressed views are uncontroversial. Z is older but still young at 11 years of age such that his views and wishes ought to start from a position of being secondary to the views of his parents. However, the reality is Z has demonstrated that he is resolute enough to act upon his own views and wishes by taking himself into or out of the care of either parent at his own risk and without advice, support or assistance. Regardless of his age, his views and wishes must be given significant weight because he is exposing himself to harm otherwise. Z engaged meaningfully, genuinely and keenly with the Expert which perhaps is unsurprising given the intensity with which the conflict has impacted upon him together with the lack of opportunity he has been given to express himself to date.
What is the likely effect of any changes on the children including separation of Z from X and Y – Section 60CC(3)(d).
The interim orders will have the siblings living in different homes and there is an inherent risk that it may provide fertile ground for alignment with a parent, and is in contrast to the Expert’s view at paragraph 313 that “it was imperative that [Z], [X] and [Y] were encouraged to return to residing together as their sibling relationship was considered a protective factor to their long term positive wellbeing.” I note however that is not the Expert’s immediate concern where under the recommendations made by her, the siblings are not residing together fully until X starts high school which would be in 2027. In that sense, the Orders are consistent with what is recommended by the Expert.
Does either parent have an incapacity to provide for all of the needs of the children, including emotional and intellectual needs – Section 60CC(3)(f).
Much of the mother’s evidence seeks to prove that the father is an incapable or irresponsible parent compared to the mother. My impression is that much of it is peripheral and used in a way where the father is blamed no matter what he does. The mother criticises the father for his working hours, being absent and disinterested in the children. The mother also criticises the father for being present and seeking to maximise his involvement in the children’s lives. The mother criticises the father for providing a mobile phone to Z despite herself having provided to Z a trackable watch. The mother imposes strict communication limitations then criticises the father for not communicating with her instead of directly with Z. The mother alleges the father is attempting to intrude and interfere with her life but does not sincerely facilitate the children’s phone calls with the father.
Historically, the parents have had the benefit of together, as a unit, providing for all of the needs of the children and they each had different roles in achieving that. Things are now different and both parents are having to come to terms with having to do more of the things that the other of them used to be primarily responsible for. None of that is unique to this family and does not in this case provide grounds for an argument of being incapable.
The evidence does not support the proposition that either parent does not have the capacity to provide for all of the needs of the children - except in the area of managing conflict which is an immediate and acute problem in this case. Presently, the mother is unable to provide for Z’s emotional needs and has not demonstrated a plan to rectify that.
What impact do the allegations of family violence have on an interim basis and what impact do the Intervention Order proceedings have – Section 60CC(3)(j) and (k).
The mother alleges family violence specifically and only by way of the father’s behaviour coercing and controlling her. The grounds on which the allegations are made are:
(a)The mother has been subject to verbally abusive and controlling behaviours before and after separation;
(b)The father has threatened to self-harm;
(c)The father surveils and controls the mother by attending the children’s extracurricular events outside of their time with him and by providing Z with a mobile phone; and
(d)The father transferred title to the vehicle the mother drives out of his name and into her name without notice which caused the mother problems when renewing the registration.
The father makes some factual concessions with respect to each of the above but categorically denies that any of it can or should be categorised as family violence by way of coercion and control. My impression of the parties’ evidence with respect to these events is that neither separately nor collectively do they amount to behaviour that coerces or controls the mother. They are more accurately categorised as conflict in this high-conflict case.
The Expert recorded:
Whilst the issue of family violence remained a matter for the Court to assess, the writer noted that based on the descriptions of the children, it appeared that when there had been parental conflict, [Ms Mertz] was allegedly often louder and more reactive whereas [Mr Mertz] was calmer and chose to disengage…
I have had regard to the existence of the family violence order obtained by the mother along with the allegations and circumstances on which it was obtained. It is an interim order and no findings have been made. I expressly state that I accord it no weight with respect to her allegations of family violence. I expressly state that in my view doing otherwise would undermine the integrity and purposes of the very important Intervention Order scheme which is preventative and not persecutory.
It is a matter of further evidence and cross examination but I do not discount the Intervention Order proceedings in this case as possibly being a form of systems abuse.
What orders are least likely to lead to the institution of further proceedings – Section 60CC(3)(l).
The orders sought by the mother to continue and strengthen the 21 December 2023 orders – which are not working – would almost certainly lead to further proceedings probably by way of contravention proceedings or yet another application in a proceeding.
There has been an extraordinary amount of activity already within these proceedings. It has not been of any benefit to the children as the circumstances from their perspective, particularly Z, is that the situation is bad and only getting worse.
The touchstone of the interim orders is to remove or mitigate the opportunity for conflict between the parents and the children’s exposure to it. The Orders then seek to provide a pathway towards a world where the children and not the contested proceedings are the paramount focus.
I am conscious that within this interim hearing, more than the usual amount of findings have been made or impressions expressed. I consider that doing so in this case best furthers the objects set out in s 60B of the Act and the principles in s 69ZN. I am somewhat fortified in that approach by having the benefit of a full family report.
I expressly state that the observations and findings made in this interim hearing do not bind the Court that may have the benefit of further or different evidence and testing of that evidence by way of cross-examination.
THE ORDERS
No order is made with respect to parental responsibility. Neither party in their material to date has submitted that there should be anything other than equal shared parental responsibility. There are significant communication issues that will need to be resolved by themselves or the Court at a later date before being able to determine who should have parental responsibility. It was common ground that whilst Z’s high school looms as the next long-term decision to be made, it is not necessary to seek to resolve that on this interim hearing. Both parties agree, appropriately in my view, that an order should not be made for equal shared parental responsibility in the context of these interim proceedings.
Order 1 is made to make clear and definitive the status of the proceedings as at today. It includes discharge of the orders made on 21 December 2023 that are the subject of the father’s review application.
Orders 2 and 3 are made because:
(a)Where Z is living with the father, X and Y should no longer be exposed to the conflict as between Z and the mother which is the father’s primary concern in seeking to change their residence.
(b)X and Y are otherwise relatively settled and content in the mother’s care and there is no need to impose significant change upon X and Y when the risk has been ameliorated.
(c)I am concerned that there is a risk that the mother may not promote their relationship with the father, or seek to project her views of the father onto X and Y, but the substantial and significant time provided for X and Y to spend with the father will assist in off-setting that. It is a matter that will require greater consideration at final hearing.
(d)The regime is as recommended by the Expert.
Order 4 is made because:
(a)I find that Z is at grave risk of serious psychological and emotional harm if he is forced, and likely physically forced, out of the care of the father and into the care of the mother in the present circumstances.
(b)The mother’s inability to accept that the previous orders were patently not working and dangerous, in preference to her denigration and blaming of the father, is of concern. The mother had no proposal in evidence or submissions as to how she would manage a repeat of what happened on the last three occasions that Z refused to remain in the mother’s care. The mother seemed content to simply let the effect of a recovery order take its course including if it meant police manhandling Z into her care and the father being forced to lock Z out of his house on pain of breach or perhaps even criminal charge.
(c)I am satisfied that the father has and will continue to make efforts to restore the relationship between Z and the mother despite the mother’s unabated denigration of him personally.
(d)It is in line with what was recommended by the Expert as far as it can be in light of the significant deterioration in the relationship since the report was prepared.
(e)It is in line with Z’s clearly expressed views and wishes.
Order 5 is made by consent with respect to X and Y. In light of Order 4 it is not necessary or helpful to make orders for special occasions with respect to Z.
I do not make the order sought by the mother seeking to prevent the father’s use of “supports” to help care for the children. Substantial and significant time includes involvement in school and work routines and in occasions and events that are of particular significance to the children and the parent. The children enjoy positive relationships with both sides of their family. I see no benefit to the children in an order to the effect of locking the father and the children down and other people out.
Order 6 regarding handovers is made by consent.
Both parties seek orders providing for telephone communications. I note the Expert recommends daily calls but I accept the mother’s submission that can be intrusive. Orders 7-11 seek to strike the balance between providing X and Y consistent and predictable communication with both parents without unreasonably interfering with the resident parent. In light of the approach to Z generally, and that Z has his own phone, Orders 7, 8 and 12 seek to provide an opportunity for electronic communication between Z and the mother to be a bridge or positive experience rather than something forced by the father.
Order 13 is made by consent.
Order 14 is made by consent. Order 15 is made in the terms sought by the mother. I hear the father’s strong submissions that it is a matter of particular importance to him however, on balance, the order is consistent with the theme of all of the orders which is to reduce conflict between the parents and reduce the children’s exposure to conflict. The orders otherwise sufficiently provide for the maintenance of the children’s relationship with the father outside of him attending each and every one of their events.
Order 16 is made by consent.
Orders 17 and 18 with respect to extracurricular activities are not in the terms sought by either party. They are not watertight but seek to balance the parents’ distrust of one another, whilst still providing a workable pathway forward. It may be considered by the parties as an opportunity to consult each other and make genuine attempts to come to joint decisions, which is a mandatory requirement to an order for equal shared parental responsibility which they are yet to contend with.
Order 19 is made by consent. The father sought the addition of Y which I decline to make on the basis that there is no evidence on that matter and Orders 17 and 18 will otherwise apply.
The restraints at Order 20 are largely by consent. Those that aren’t are:
(a)Order 18(f) where the mother sought the inclusion of “public media.” Noting the father’s employment and the reality that there is a possibility, however small, that the children’s image may appear accidently on “public media” in the context of the father labouring under the threat of criminal charges, I decline to include “public media.”
(b)I decline to include an order with respect to “activating any tracking device.” The circumstances around the father obtaining a mobile phone for Z are in my view consistent with the welfare of Z and are not at all about the father attempting to insidiously track the mother. Activating a “tracking device,” whatever that may mean, may be precisely what would be required in the event Z were to absent himself from the care of either parent as he has done in the past. Further, Z will be living with the father. There is no other evidence that the father seeks to electronically track the mother.
All of the restraints are made on a without admissions basis and noting that each party contends they are not necessary with respect to themselves. My impression is they are illustrative of the highly adversarial character of the proceedings and will hopefully fall away in due course.
Order 21(a) with respect to Z is made as a consequence of Order 4, as sought by the father, and in support of the reasons given above for Order 4. Order 21(b) and 22-24 are made by consent. Order 25 is made again in an attempt to reduce potential for conflict and the children’s exposure to conflict.
Orders 26-28 provide for the appointment of an Independent Children’s Lawyer. With reference to the guidelines for the appointment of child representatives laid down by the Full Court in Re K (1994) FLC 92-461; (1994) 17 Fam LR 537, the order is made where in this case:
(a)There is an apparently intractable conflict between the parents;
(b)(Presently) a child is alienated from one of the parents;
(c)A child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing living arrangement;
(d)(Presently) the siblings are split.
Order 29 is made to facilitate the parties’ costs in those proceedings on top of their costs in these proceedings and again in an attempt to reduce potential for conflict and the children’s exposure to conflict.
I decline to make an order with respect to providing for the parties to make submissions about transferring this matter to Division 1. In my view, none of the features listed in paragraph 4.13 of the Central Practice Direction – Family Law Case Management apply. It is something that the parties can agitate if they choose at the appropriate time, which is at the compliance and readiness hearing.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 23 January 2024
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