MERTZ & WADDING

[2020] FCCA 203

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERTZ & WADDING [2020] FCCA 203

Catchwords:
FAMILY LAW – Ex tempore ruling.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MS MERTZ

Respondent: MR WADDING

File Number: MLC 11688 of 2019

Judgment of: Judge Burchardt

Hearing date: 3 February 2020

Date of Last Submission: 3 February 2020

Delivered at: Dandenong

Delivered on: 3 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Serra

Solicitors for the Applicant: Ellinghaus & Lindner

Counsel for the Respondent: Mr Robertson

Solicitors for the Respondent: Victorian Aboriginal Legal Service

Counsel for the Independent Children's Lawyer: Mr Brewer

Solicitors for the Independent Children's Lawyer: Robert Halliday And Associates

ORDERS

1. The children X born in 2010 and Y born in 2011 live with the Father.

2. The Mother’s time with the children be reserved.

3. Pursuant to s.11F of the Family Law Act 1975, the mother, the father and the children X born in 2010 and Y born in 2011 attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services at the Dandenong Registry of the Federal Circuit Court of Australia with the Father to attend at 9.00 am on 2 March 2020 and the Mother to attend at 10.00 am for the purposes of the preparation of a short form written memorandum, which the family consultant is to provide within seven days.

4. The matter remains adjourned to this Court for Mention before Judge Riethmuller on 12 March 2020 at 10:00am.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 11688 of 2019

MS MERTZ

Applicant

And

MR WADDING

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The interim dispute is required to be addressed according to the statutory pathway set out at paragraphs 82 of the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346. The Court’s first task is to identify the competing proposals of the parties. There are a number of matters in dispute as to what should happen until a section 11F set of interviews which are due to be held on 2 March 2020. The mother seeks that the children be released, effectively, almost immediately into her care for some days and that thereafter the prior extant orders made in April last year remain in full force and effect. Counsel has assured me that that would be a 5-9 arrangement.

2. The father seeks that the mother’s time remain suspended. It should be noted it has effectively been suspended unilaterally by him for quite a substantial period of time, until the section 11F report is heard. In that regard, counsel for the mother points to the fact that the section 11F interviews might be thought more likely to have purchase, so to speak, if the children had indeed seen their mother prior to the section 11F report occurring. The Independent Children’s Lawyer supports the father’s position for reasons to which I shall come.

3. There is also an interim dispute as to which school the children should attend.  The mother seeks that they attend B School and the father seeks that the children attend C School.  Those are the matters in dispute and the parties’ competing proposals.  

4. The matters in dispute in the interim hearing relate primarily to the various and all too multiplied criticisms that the parties make of one another.  The father asserts risk on the mother’s part in the form of threats to kill the children made in November of last year.  There are assertions as to the mother’s possible drug use.  By way of contradistinction, it is put that the father is coaching the children to make disclosures that they are said to have made.  That is merely an indication of some of the more significant matters in dispute. 

5. So far as uncontested or relevant facts are concerned, it appears to be the case that the children have missed a lot of time in school when in their father’s primary care. At present, they are not being schooled anywhere. They are being privately tutored, I am told, at home although nothing whatever has been put on as to the qualifications of the person who is undertaking this tutoring. I note it is for three days a week and not five. The children are of an age where one might think that private tuition would need to be a bit more sophisticated perhaps than just one person but I am not in a position to make any definite views as to that. It is clear that the children have seen very little of their mother, if anything, since November last year. It is not possible to make any findings in any meaningful sense about the matters in section 60CC that are relevant given the stark disparities of the parties’ evidence.

6. Likewise, it is not proposed in this interim hearing to make any orders as to parental responsibility, especially since there is, in fact, an order for equal-shared parental responsibility extant between the parties.  If there is one thing that is clear, it is this is not being applied by either party for various reasons.  So it then becomes a matter of making such orders as are in the children’s best interests. 

7. One matter I will touch on, because it really does trouble me, is that in oral submissions today counsel for the father has asserted that one of the reasons the children were not to continue at B School is because they were racially abused on the bus and called “niggers”; a term so grossly offensive as to require no further comment.  I would have expected that to have been in his affidavit material and counsel, to his credit, did not seek to quibble with the fact that one might reasonably expect to see it there. He had no explanation for it not being in there.  That raises, in my mind, a concern as to the extent to which matters are being added on or invented to foment the case of the party putting it forward.

8. So far as any kind of independent evidence is concerned, I have two reports from the Department of Health and Human Services:  one which is a very short and recent one, is an addendum dated 3 February 2020. The only aspect I take from this is that the Department of Health and Human Services has no apparent protective concerns in relation to X and Y who currently reside with their father.  The other matter that I should take from this report is that the mother has completed a third screen which was negative for all illicit substances on 31 January of this year.  And I note from the other report that is before me that she had previously provided another clear screen.  This puts the father’s assertions as to the mother’s drug use in some sort of context, in my view. 

9. However, what I do have is an extensive section 67Z response dated 31 January 2020.  One of the difficulties with these responses is, of course, very understandably, the Department of Health and Human Services does not detail who the various informants are but it would seem relatively probable to me that many of the reports of adverse effect made against each parent have in fact either been made by the other parent or by some person closely aligned with them.  I note that the response observes on a number of occasions, concerns that appear to me to have some prima facie force, that the children may be being coached by the father to say some of the things they are saying.  Nonetheless, it is a fact that during interview – I am sorry, I cannot immediately find it – I think it was X, made an assertion to a police officer that the mother had, on one occasion, threatened to kill not only him but his brother – assuming Y is a boy – and the mother herself.

10. The submissions made by the parties have been thorough. Counsel for the mother pointed to the lack of time since November last year, the fact that this plainly in breach of the extant orders which it obviously is, and he traversed issues as to the school. Counsel for the father pointed to the convenience, certainly to him at least, of the C School and noted this question of the car incident to which I have referred and submitted there should be no time until the section 11F report. Counsel for the Independent Children’s Lawyer supported the father’s position on the footing that there is an unacceptable risk in the light of the matters reported about the mother’s threats to the children’s wellbeing and doing burnouts.

11. I share a number of the reservations detailed by counsel for the mother in reply about the allegations of the children being bullied at school and racially insulted.  These matters, one would have thought would have been in the father’s affidavit material as they would seem to me to be at the forefront of any reasonable concern.  Nonetheless, I am faced with the Independent Children’s Lawyer’s submission as it is the only independent advice I have.  It is consistent with the terms of the 67Z response, noting that there may yet be issues as to the extent to which that response was the subject of coaching on the father’s part. 

12. In my view, and doing the best one can in what are thoroughly unsatisfactory circumstances, I am going to make the orders 1, 2 and 3 sought in the father’s minute which will have the effect of adjourning the matter to 2 March 2020 for a Child Inclusive Conference.

13. The father and children to attend at 9:00am and the mother at 10:00am.  There will be a written memorandum and the matter, I think, is coming back before Judge Riethmuller on 12 March 2020 for further consideration.  I should say that will be at 10:00am.  I am going to have my remarks today transcribed and made available to the parties and Judge Riethmuller so he will have the benefit of my thoughts on the matter. 

14. I am not going to make any order as to schooling.  This schooling dispute does no credit whatever to any of the parties and has all the appearance of being just an interpersonal struggle, from where I sit.  But while it is deleterious, in my view, to the children that they not attend school and be home-schooled until 12 March 2020, it is not a period of such enormous time that is likely to do any ultimate damage to the children and while the parents are locked into this sordid dispute about two schools, both of which I suspect might well be entirely satisfactory, the matter will just have to remain as it is, which is essentially the position put by the Independent Children’s Lawyer.  The children will simply not be enrolled or attend any school until the matter comes back.

15. I will say only this, bearing in mind that I will not be in it any further, if it was to emerge that these children are being coached and significantly so, then, in my view, subject to obvious further investigations of issues of risk on the mother’s part, I would have thought an application for change of residence would not be off the table. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 4 February 2020