Messmer and Cable (No.2)
[2011] FMCAfam 554
•22 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MESSMER & CABLE (No.2) | [2011] FMCAfam 554 |
| FAMILY LAW – Interim parenting application(s) – child protection concerns – best interests of the child – suspension of existing orders. |
Family Law Act 1975 (Cth), ss.60CC, 61DA(3)
| Nemeck& Jump (2010) FamCA 1012 Goode & Goode [2006] FamCA 1346 Messmer & Cable (2011) FMCAfam 167 |
| Applicant: | MS MESSMER |
| Respondent: | MR CABLE |
| File Number: | DGC 3913 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 22 March 2011 |
| Date of Last Submission: | 22 March 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 22 March 2011 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr T. Moisidis |
ORDERS
The following orders were made in proceedings DGC3913/2010:
The parenting orders made on 22 May 2003 be suspended.
The child of the marriage [X] born [in] 1999 (“the child”) live with the father.
The time for the filing of submissions by the mother as outlined in the orders of 15 February 2011 be extended to 5 April 2011.
The mother file and serve the application to transfer the proceedings in DGC3913/2010 to the Family Court of Australia by 29 March 2011.
The mother and father file and serve any submissions that they seek to rely upon in relation to the mother’s application to transfer the proceedings and/or the consolidation of the proceedings in DGC3276/2010 by 5 April 2011.
The matter be otherwise adjourned for interim hearing on 7 April 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
Pursuant to s.65DA(2) 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 Annexure A and these particulars are included in these orders.
The following orders were made in proceedings DGC3276/2010:
Counsel appointed pursuant to paragraph (1) of the orders made on
7 February 2011 be excused pursuant to Rule 12.06 of the Federal Magistrates Court Rules 2001 given the absence of an instructor and the Applicant’s instructions that she wishes to represent herself.
The Applicant provide evidence that her application and material has been served on the Second Respondent.
The parties shall file and serve any submissions that they seek to rely upon in relation to the maternal grandmother’s application to transfer the proceedings and/or the consolidation of these proceedings with DGC3913/2010 by 5 April 2011.
The matter be otherwise adjourned for interim hearing on 7 April 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.
Pursuant to s.65DA(2) of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.
AND THE COURT NOTES:
The Department of Human Services are excused from attendance on the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Messmer & Cable (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 3913 of 2010
| MS MESSMER |
Applicant
And
| MR CABLE |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court this afternoon are two different applications in two separate proceedings which have been filed by Ms Messmer, nee Cable (“the Applicant”).
Proceedings in DGC3276/2010
The first matter filed by Applicant is an application filed on
24 September 2010. The first respondent to that application is the Applicant’s daughter, Ms P Cable (“Ms P Cable”). The second respondent to that application is Mr T, who has not filed any responding material, or participated in these proceedings. There is no evidence he has been served. The first and second respondents are the parents of the child, [Y] born [in] 2008 (“[Y]”) who is the subject of the application. The applicant is [Y]’s maternal grandmother and she filed the application in DGC3276/2010 seeking to spend time with [Y].
Since this application was filed, there have been orders made by the Court on 5 October 2010 which provided:
“1.The First and Second Respondents shall file and serve a Response and Affidavit by not later than 4.00 pm on
1 November 2011.
2.The Applicant shall serve the Second Respondent with a sealed copy of these orders within 14 days.
3.Pursuant to Section 91B of the Family Law Act 1975 it is requested the Department of Human Services Victoria intervene in these proceedings.
4.Upon request from the said Department the Court do provide to it copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in the proceedings.
5.The matter be adjourned for Mention on 18 November 2010 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.”
Further orders were made on 18 November 2010 which were:
“1.The matter be adjourned to 22 March 2011 at 10.00 a.m. in the duty list at the Federal Magistrates Court of Australia at Dandenong.
AND THE COURT NOTES:
A.The Second Respondent has not been served.
B.The Department of Human Service letter dated 4 November 2010 and recommendation the child not be placed with the Applicant maternal grandmother.
C.The solicitor for the Respondent will forthwith file and serve a notice of ceasing to act and transfer the grant of aid to another solicitor.”
Most recently and on 7 February 2011 (in the context of a separate but related application to which I will turn presently) the Court made orders that:
“1.Pursuant to Rule 12.03 of the Federal Magistrates Court Rules 2001 the applicant be referred to the Registrar of the Federal Magistrates Court of Australia to be referred to a lawyer on the pro-bono panel, if any, for assistance in relation to the applications filed 24 September 2010 and
18 November 2010.
2.The matter be adjourned to the duty list on 22 March 2011 at the Federal Magistrates Court of Australia at Dandenong commencing at 10.00 am.”
At all times throughout these proceedings, the Applicant has appeared unrepresented. In both matters due to the myriad of issues referred to in the material that the Applicant had filed, on 7 February 2011, as the orders made that day indicate, an order was made under Rule 12.03 of the Federal Magistrates Court Rules 2001 (“the Rules”), for the appointment of a pro bono counsel for Applicant, which she indicated at that time that she agreed to. The matter was otherwise adjourned to today, 22 March 2011.
There is still no evidence before the Court that the second respondent, the father of [Y], the subject of the proceedings, has been properly served.
Since the proceedings were commenced, Ms P Cable, the first respondent, the mother of [Y] and the daughter of the applicant, has been represented, then most recently unrepresented. Today, Ms P Cable appeared unrepresented, but she told the Court that she has had her grant of Legal Aid reinstated. Ms P Cable told the Court she expects to be represented by a lawyer in this matter again shortly.
Proceedings in DGC3913/2010
Also before the Court today is another application filed by Applicant, this time on 12 November 2010. In that matter the Applicant is the mother of the child the subject of the proceedings. The first respondent to the application is Mr Cable (“the father”). The applicant and the father have a child, [X] born [in] 1999 (“[X]”), who is the child, the subject of the application.
The Department of Human Services, albeit the Manager of the Southern Region in her capacity as that person, was named as the Second Respondent in that application.
That application first came before the Court on 21 December 2010 and the Court made orders that:
“1.The Second Named Respondent do file and serve an Application in a Case, Affidavit and Outline of Argument/Submissions by 17 January 2011.
2.The Applicant and the First Named Respondent do file and serve anything in reply by 31 January 2011.
3.The matter be otherwise adjourned for mention on
15 February 2011 at 10.00 a.m.AND THE COURT NOTES THAT:
A.The letter from the Department of Human Services dated
17 December 2010.”There were orders made which saw the matter back in Court for an interlocutory hearing to deal with an application in a case which was ultimately filed as a response by the Department of Human Services.
The matter returned to the Court on 15 February 2011 to deal with that response. For the reasons that were delivered ex tempore in Messmer & Cable [2011] FMCAfam 167 the following orders were made:
“1.Pursuant to Rule 11.04 of the Federal Magistrates Court Rules 2001 the second respondent be removed as a party to these proceedings and there be no order as to the costs as sought in the application against it.
2.The material obtained from the Department of Human Services pursuant to the subpoena filed on 23 December 2010 in relation to [X] born [in] 1999 (“the child”) be released for inspection only and the subpoena be otherwise set aside.
UPON THE UNDERTAKING OF THE APPLICANT THE COURT ORDERS:
3.The proceedings be adjourned to 22 March 2011 at 10.00 am for mention at the Federal Magistrates Court of Australia at Dandenong.
4.The applicant file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 8 March 2011.
5.The respondent file and serve a minute of proposed interim orders and an outline of case addressing the relevant statutory criteria for the proposed orders by 15 March 2011.
6.Pursuant to s 65DA(2) 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 Annexure A and these particulars are included in these orders.
AND THE COURT NOTES:
A.The Department of Human Services will appear as amicus curiae on the adjourned date.”
The matter of DGC 3913/2010 was adjourned to today, which was the return date of the other proceedings in DGC3276/2010.
Hearing on 22 March 2011
This morning, Ms Karnis of Counsel announced an appearance on behalf of the Applicant pursuant to an order made under Rule 12.03 of the Rules on 7 February 2011.
What ultimately transpired was an oral application pursuant to Rule 12.06 of the Rules by Ms Karnis (who had been appointed pro bono back on 7 February 2011). The Court was asked that she be excused from appearing on behalf of the Applicant. Ms Karnis’ view was that this was a matter which required an instructor and the Applicant had made it very clear that she wished to represent herself. In those circumstances, Ms Karnis was excused from the hearing.
Then there followed an exchange between the Court and the parties in both matters.
In the course of a duty list with around 20 other matters, the Court raised with the parties possible future options for both of these applications commenced by the applicant. Those options included:
· whether the two matters should be consolidated;
· whether the matter(s) should be transferred to the Family Court of Australia;
· what orders could be usefully made on an interim basis; and
· how quickly the matter could be advanced to trial and with what therapeutic interventions.
The matter was stood down to enable the parties time to think about the future conduct of the proceedings.
The Court drew to the attention of the parties the decision of Cronin J in Nemeck& Jump (2010) FamCA 1012. In that decision His Honour considered the issue of the transfer of an application for parenting orders between this Court and the Family Court. At paragraph 37 His Honour said:
“If there is to be any philosophical overview describing the distinction between the work to be done by the two courts, it could be said that this court should be dealing with cases that require the attention of a superior court of record. That point may require consideration of whether there are forensic issues or legal issues that require unusual significant arguments or determinations.”
As His Honour’s decision makes clear, in considering whether matters ought be transferred to the Family Court, His Honour was of the view that consideration should be given to whether there are forensic or legal issues that require unusual significant argument or determination as a significant factor in deciding whether the matter was appropriate for a what he describes as, “superior Court of record”.
In those circumstances, the Court indicated to the parties that, at this stage, the Court wasn’t going to consider making an order transferring the matter to the Family Court. Having indicated that to the parties, which was at some variance to the initial view expressed prior to lunch, the Applicant indicated that she wanted to apply for the application (she didn’t indicate which one) to be transferred to the Family Court.
There then arose, in order to give the Applicant time to enable her to do that, the need to consider what should happen in both matters until further order.
The Court was provided with a minute of proposed orders which has been prepared by Counsel for the father in DGC3913/2010.
Those were that in the matter of DGC3913/2010, that until further order the orders made in the Family Court of Australia in 2003 be suspended, that the child of the marriage, [X], live with the father until further order, and then there be a range of other orders which, essentially, are repeat orders that have already been made but which the Applicant had failed to comply with; for example, the order requiring her to file material, and an outline of submissions addressing the relevant statutory criteria in support of the orders that she has sought, and giving her time to make the application that she told the Court she wished to make from the bar table this afternoon, which would see the matter come back to Court on 7 April 2011.
Ms McNaught of Counsel appeared as Amicus Curiae for the Department of Human Services today. Ms McNaught was given leave, for the reasons I gave at the time, to file in Court an affidavit of Ms D. Ms D is a Child Protection Worker for the Southern Metropolitan Region of the Dandenong Office of the Department of Human Services.
That affidavit makes clear that in DGC3913/2010 the Department of Human Services has had extensive involvement with the Applicant and the father, and the child, the subject of the proceedings in that matter, [X].
Ms D in her affidavit deposes at paragraphs 14 that:
“14.As stated in my previous affidavit, I have formed the view that [X] continue to reside with the father Mr Cable, who continues to demonstrate that he is able to provide a safe and stable environment for [X], in order to meet his short and long term developmental needs. It is my recommendation that Ms Messmer completes psychiatric and clinician psychological assessments and access on going psychiatric and psychological support. I further recommend that any of [X]’s contact with his mother be supervised at this point in time. This recommendation is provided as firstly, given protective concerns in relation to Ms Messmer’s behaviours and mental health presentation, I access that [X] would be at significant risk of further harm in her care; further that [X] himself does not feel safe to be alone in her care at present, or even have contact with her at present. Supervised contact, occurring when [X] feels safe to begin this contact, would provide an environment in which [X] can re-establish a relationship with his mother in a safe environment, whilst she addresses her own difficulties.”
The position of the Department of Human Services referred to in that affidavit is until further order, the child [X] should remain living with his father for the reasons referred to in that affidavit and spending nothing other than supervised time with the mother until further order.
Ms D’s affidavit at paragraph 15, is also relevant for the purposes of DGC3276/2010 wherein she deposes:
“15.With regards to [Y] born [in] 2008 (herein referred to as “[Y]”), the son of Ms P Cable and Mr T, grandson of Ms Messmer and Mr Cable, I have had no direct contact with either [Y] or Ms P Cable. All information deposed, with relation to [Y], has been gathered from my reading of the Department records and notes relating to him.
…
23.At this point in time, no protective concerns have been identified with regards to [Y] in his mother, Ms P Cable’s care. It is the Departments understanding that [Y] and Ms P Cable no longer reside with Ms Messmer, and the Department would have significant concerns should Ms P Cable take [Y] to reside with
Ms Messmer at this point in time, or if [Y] were allowed to have unsupervised contact with Ms Messmer at this point in time.”
The application, which was filed first in time by Applicant was DGC3276/2010, in which she is the applicant maternal grandmother. As Ms D, in her affidavit, deposes, she has had involvement with the family, and the parents of the child [Y]. Ms D deposes she has no concerns with [Y] remaining in the care of his mother, but she has grave concerns if [Y] was placed into the care of the Applicant, or spent time anything other than supervised time with the Applicant.
Approach to application(s)
The proceedings concern interim parenting orders as that term is defined in section 64B of the Family Law Act 1975 (“the Act”). The principles to be applied in the determination of an interim parenting proceeding have been set out in the Full Court's decision in the matter of Goode & Goode [2006] FamCA 1346. In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Consideration
In DGC3913/2010, the proposal of the respondent father was supported by the Department of Human Services for the reasons set out in Ms D’s affidavit.
The Applicant’s proposals have changed throughout the course of the proceedings. She has made it very clear on each occasion that she has been in Court that she believes that orders made in the Family Court of Australia, back in 2003 should be back in force and, in short, she wanted [X] to return to live with her.
The overwhelming weight of the affidavit material, including the independent evidence on file from the Department of Human Services, is that would be contrary to [X]’s best interests on an interim basis. Consideration of the primary and additional considerations in this matter, including the evidence from child welfare authorities in this state, mean that it would be contrary to section 60CC(2)(b) of the Act for the Court to consider anything other, until further order, [X] remaining in the care of his father, and for the matter to be the subject of further therapeutic and other interventions before consideration be given to, ultimately, at trial, what orders are in [X]’s best interests.
There has been no Rice & Asplund argument raised. The orders made in the Family Court, to the extent that it’s possible to fathom from the incoherent and voluminous material filed in this matter, appear to have been made back in 2003.
[X] is now 11 years old and the best evidence from an independent party as to what is in his best interests on a interim stage is contained in the material filed in this matter, either on behalf of the Department of Human Services, or obtained from the Department of Human Services pursuant to protocols established between the Family Law Courts and child welfare authorities in this state.
It is clear that the Department holds grave concerns about the Applicant’s behaviour and need for psychiatric and psychological support. There is extensive material referring to a background of illicit drug taking and abuse.
It is also clear that there is evidence held by the Department on their files as a result of either notifications or interventions that they have engaged in, that have been sufficient to raise protective concerns on their part as to warrant them taking the action that has been referred to in the material, and that sees [X] in his father’s care until further order.
Given this is an interim matter and on the basis of the material from the Department of Human Services, I would find it appropriate to rebut the presumption pursuant to s.61DA(3) of the Act. (see Marvel & Marvel (2010) 43 FamLR 348). At the present time, this appears to be one those matters that slips between the cracks in the child welfare family law system. There were orders made in the Family Court of Australia almost eight years ago. Those orders appear, on one party’s case, to have reached their use-by date, on another party’s case (the Applicant’s) as she claims to have been the subject of a campaign against her for reasons which she set out in her affidavits as appropriate.
Neither of the parties raised a Rice & Asplund argument. Even on the passage of time given [X]’s age now it’s possible, given the authorities such as Miller and Harrington, and other recent Full Court authority it is open to the Court to consider revisiting those orders in [X]’s best interest.
Today, the Court is only asked to consider what should happen until further order. There had been an undertaking provided by the applicant, on and from 15 February 2011, not to enforce the orders of the Family Court until further order.
The Applicant gave that undertaking on the last occasion. It was made clear to her this afternoon it was possible to extend that undertaking, instead of the Court having to suspend the existing orders.
The Applicant made very clear, in a most vociferous manner in Court this afternoon, that she had no intention of giving another undertaking. The Applicant made clear that she didn’t believe she would made a fool of twice.
I interpolate and note that the Applicant has not being treated as a fool on any occasion that she has been in this Court. In fact this Court has fallen over itself to accord her every opportunity to put her case, has made and been at pains to explain to her what is going on in Court on each occasion, and has tried to bring the matter back as quickly as possible.
It is clear to the Court, and this was the subject of the reasons in Messmer & Cable (2011) FMCAfam 167, that the Applicant feels very vexed and unjustly dealt with by the Department of Human Services. That is her view. Whether, ultimately at trial, there is any basis for those claims of persecution is another issue, but the defined and discrete issues that confront the Court today is in relation to [X], and making an order between now and 7 April 2011.
For the reasons I have given I am satisfied orders in terms that I have already articulated are in his best interests. To do otherwise would risk exposing [X] to the issues referred to in Ms D’s affidavit. On the material before me, I am just not satisfied that those orders, or any orders other than those, in those terms, would be in his best interests. I will make orders in those terms, for those reasons.
In terms of DGC3276/2010, the orders I am making require the Applicant to produce, as she is required to do, proof that another party in those proceedings is on notice and properly served and there has been no evidence of that. There will be an order requiring her to provide proof of that. Her daughter, Ms P Cable, is here. I have not been asked to consider making any substantive parenting orders for [Y], at least in favour of the Applicant, today, and I don’t intend to do so for reasons including the reasons referred to in Ms D’s affidavit.
For those reasons, I will make orders 1, 2, 3, 4, 5 of the minute and the matter will be adjourned to 7 April, and the Department will be excused from attendance on that day and I so order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 22 March 2011
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