Metcalfe and Metcalfe

[2019] FCCA 1260

FEDERAL CIRCUIT COURT OF AUSTRALIA

METCALFE & METCALFE [2019] FCCA 1260

Catchwords:
FAMILY LAW – Parenting – best interests of the child – benefit of having a meaningful relationship with both parents – graduated increase in time.

Legislation:

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

Applicant: MS METCALFE

Respondent: MR METCALFE

File Number: DNC 601 of 2018

Judgment of: Judge Young

Hearing date: 16 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Darwin

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Swan

Solicitors for the Applicant: Swan Family Lawyers

Counsel for the Respondent: Ms Matthews

Solicitors for the Respondent: Adelaide Hills Lawyers

Counsel for the Independent Children’s Lawyer: Ms Lindsay

Solicitors for the Independent Children’s Lawyer: Duncan Basheer Hannon

ORDERS

1. That the children [X] born on … 2009, [Y] born on … 2010 and [Z] born on … 2013 (“the children”) live with the mother.

2. That the children spend time with the father as follows:

   (a)during the April 2019 school holidays:

   (i)from 12 noon on Good Friday 19 April 2019 until 5.00 pm Easter Saturday, 20 April 2019;

   (ii)from 12 noon on Friday 26 April 2019 until 5.00 pm on Saturday, 27 April 2019;

   (b)during school term:

   (i)each Tuesday from the conclusion of school (or 3.00 pm if a non-school day) until 7.00 pm;

   (ii)from the conclusion of school or 3.00 pm if a non-school day on Friday, 3 May 2019 until 5.00 pm Saturday, 4 May 2019 and each alternate weekend thereafter until Friday, 14 June 2019;

   (iii)from the conclusion of school or 3.00 pm if a non-school day on Friday, 21 June 2019 until 5.00 pm Sunday, 23 June 2019 and each alternate week thereafter;

   (iv)from the commencement of Term 4 in 2019, in the weeks other than the week referred to in order (ii) above, from the conclusion of school or 3.00 pm if a non-school day on Thursday until before school or 9.00 am if a non-school day the following Friday and each alternate week thereafter;

   (c)that for all school holiday periods from July 2019 the orders set out in paragraph 2 above be suspended and the children spend seven nights at such time as agreed between the parties and in the absence of agreement in the July 2019 school holidays from 5.00 pm on Friday, 5 July 2019 until 5.00 pm Friday, 12 July 2019.

3. That handovers occur at the children’s school or if the children are not at school at Suburb A Sports Oval, Suburb A or such other place as agreed between the parties.

4. That the parents provide all consents necessary for the children to attend such therapy/programs provided through their school as may be recommended to the parents by the children’s teachers/pastoral care workers.

5. That until further order the wife be restrained and an injunction is hereby granted restraining her from changing the residence of the children from within 30 kilometres of School B Suburb C and from enrolling the children in any school other than School B SAVE AND EXCEPT with the written consent of the husband first had been obtained.

6. That without admission, the parties are each restrained and injunctions are hereby granted restraining them each from:

   (a)Abusing, assaulting, harassing, denigrating or otherwise impolitely dealing with the other party within hearing or sight of the children or permitting any other person from so doing;

   (b)From discussing these proceedings with or showing the child any documents with respect to these proceedings or allowing any other person to do so;

   (c)Discussing or using the contents of any reports filed in these proceedings on social media;

   (d)From changing the said child’s enrolment from School B Suburb C without the written consent of the other;

7. That the boat, outboard and boat trailer be delivered up by the husband to … Marine situate at corner D Road, Town E, Northern Territory on or before 17 May 2019 to be sold by the wife with the proceeds of sale after payment of arrears payable to Bank SA loan accounts … and … to be paid to the wife by way of partial property settlement.

8. That the net proceeds of sale of the home at Property F in the State of South Australia after payment of selling expenses and repayment of Bank SA home loans … and … together with all arrears in respect of those loans be paid to the wife but for the sum of $10,000 to be retained by the jointly engaged conveyancer as agreed or failing agreement as ordered by the Court in repayment of liabilities.

9. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship [X] born … 2009, [Y] born … 2010 and [Z] born … 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report in Adelaide such report to be released by 30 September 2019.

10. That the family report to deal with the following matters:

    (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

11. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

12. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

13. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 6 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is listed for trial on 10, 11 and 12 December 2019 at 10.00am at the Federal Circuit Court, Adelaide (allowing 3 days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

6. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.

7. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

   Parenting orders

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

   Property orders

   (a)a list of the material relied upon;

   (b)a statement of any agreed facts;

   (c)a brief chronology listing significant events;

   (d)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

   (e)main contentions in dispute as to:

   (i)inclusion in the pool; and

   (ii)value of assets;

   (f)list of contributions claimed or contended for (including expression as a percentage);

   (g)list of other factors relied upon (section 75(2) factors) and percentage adjustment contended for;

   (h)other relevant contentions to determining a just and equitable division of property; and

   (i)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross-examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 601 of 2018

MS METCALFE

Applicant

And

MR METCALFE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting hearing about three children. [X] is nine, [Y] is eight, and [Z] is six years old.  The parties separated in about December 2016.  The precise circumstances are disputed but the general outline is that the mother and the children moved to Adelaide in late 2016 or early 2017. The mother says that the arrangement was that the father would follow but he did not and has remained in his employment in the Northern Territory and commenced another relationship.

3. The parties are, obviously, hostile and distrustful of each other and make various other allegations, including allegations of some cruelty and violence but I cannot resolve those at the moment.  The real issue concerns what is the correct response to an agreed position.

4. It is described in the child-inclusive conference memorandum dated 26 March 2019 when Ms G, the family consultant, interviewed the parties and the children. What is apparent is that the relationship between the children and their father has been damaged by their experience of their parents’ separation.  Further, it is manifested, at least in the memorandum, by [X], the nine-year-old, saying, and I summarise, that he is angry with his father. He expresses anger about a great many things but it might be inferred that a large part of that relates to his experience of his parents’ separation and a feeling of lack of trust and uncertainty about his father. Indeed, some other remarks relate to his father responding in an inappropriate way to him and him being somewhat anxious about his father’s reactions.

5. Notwithstanding that [X] told the family consultant that he loves his father and with deep feeling but he feels that there are other feelings of hurt as well that stopped the feeling of love for his father.  In other words, a complex situation. 

6. [Y], the eight-year-old, expressed not dissimilar feelings about his father.  He said his father had lied to them, that is, the children, and had refused to, or said he was unable to afford to, visit the children when he went to Country H and so on.  There’s some information that may indicate that the children have been inappropriately exposed to adult information.  I do not make any finding about that.  Similar ideas were expressed by [Z], the six-year-old, that she had been lied to by her father.  One is left with a suspicion that these children have not been shielded from their parents’ conflict.

7. Be that as it may, the agreed position is that there ought to be attempts to repair the relationship or relationships between the children and their father.  The issue is over what timeframe? 

8. The family consultant said in her memorandum, in the context of advising the parents, that the children expressed a sense of being let down and having been lied to by the father and suggested that relationship repair was likely to be required before considering a significant increase in time.

9. The position is that, until recently, the children’s time with their father had been limited.  As far as I can see from questioning the parties, the last significant block time was seven nights when the children spent seven nights with the father in the Northern Territory in July 2018.

10. The next time was when I made an order for the children to spend three nights with the father in February, although it appears that the children actually spent two nights with the father in February and some daytime with the father in January.  The most recent time they have spent with him was last Saturday night. 

11. So over almost the past nine months, in other words, since the July holiday time of 2018, these children spent three nights with their father.  In circumstances where the children are expressing a distrust of the father and concern about his reactions and so on, I accept that there ought to be a relatively cautious approach to the way the children’s time with their father is graduated, though I am satisfied that, having regard to the underlying strong relationship between the children and their father, I think there is a good prospect that once regular time begins again that the relationship will, I hope, improve dramatically.

12. The contending positions are essentially, on the father’s part, that there ought to be two nights a fortnight, commencing from 26 April, increasing to three nights a fortnight on 20 June and then four nights a fortnight from September.  I have set trial dates for December, so that is basically, the graduation that the father proposes over that period. 

13. The mother’s proposal, supported by the Independent Children’s Lawyer, is that there should be one night beginning on 26 April, then, as far as I can see, one night a fortnight continuing until July when she proposes that the children spend seven nights with the father in the July holidays at times to be agreed or, failing agreement, in a block of seven.  Then two nights a fortnight beginning in July, which, I guess, is after that period.

14. I am not entirely sure that that is an appropriate graduation, particularly the jump from one night to seven nights.  I think what ought to happen is that the children should spend one night with their father a fortnight, beginning on 26 April.  On 20 June, I consider that they should spend two nights, that is, Friday through to Sunday. Then from 20 September, I consider that that two nights, Friday and Sunday, should be extended by one night, a Thursday to Friday in the alternate week. 

15. I have had regard to each of the matters in section 60CC. I consider that the orders I propose are appropriate, having regard to the right of the children to have a relationship with both parents and I am not satisfied that that consideration is outweighed by the matter in subsection 60CC(2)(b).

16. I do not propose to go through each of the matters in section 60CC(3) but the matters I have already canvassed are directed to comments about subsection (3)(a)-(b). The other matters I do not consider are particularly relevant in the circumstances of this interim hearing.

17. I also propose to make an order for a family report. I will put the release date in the orders but it is intended to be late September or October.  I will also make trial directions for December and those trial directions will be that the parties are to file and serve a single trial affidavit and affidavits of any witnesses by no later than 28 days before trial, and outline of case no later than two days before trial with the trial on 10, 11 and 12 December.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  13 May 2019