Mettrick and Mettrick

[2009] FamCA 990

FAMILY COURT OF AUSTRALIA

METTRICK & METTRICK [2009] FamCA 990

FAMILY LAW – CHILDREN – With whom a child should spend time with – interim orders – allegations of family violence

Family Law Act 1975 (Cth) s 69ZU

Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Mettrick

RESPONDENT: Mr Mettrick

INDEPENDENT CHILDREN’S LAWYER: Mr Testart

FILE NUMBER: MLC 12017 of 2007

DATE DELIVERED: 22 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Connell

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

FOR THE RESPONDENT: In person

INDPENDENT CHILDREN’S LAWYER Suzanna Sheed & Associates

Orders

IT IS ORDERED:

1. That the final hearing of this matter be set down before the Honourable Justice Bennett to commence as the third case in the rolling list of cases beginning on 1 September 2009 at 10.00 a.m., estimated to take not less than five (5) days.

2. That in anticipation of the final hearing, each party file and serve any amended application or response and any affidavit material or proof of evidence in support of his/her case, as follows:-

   a)     The applicant wife by 12.00 noon on 16 July 2009:

   b)     The respondent husband by 12.00 noon on 30 July 2009; and

   c)     The independent children’s lawyer / third party by 12.00 noon on 9 July 2009.

3. That by 6 August 2009 the independent children’s lawyer file and serve a statement of allegations of child abuse or mistreatment and/or domestic violence relevant to this proceeding.

4. That until further order the husband have telephone communication with the children C born … July 1999, T born … August 2001 and R born … October 2005 between 5.00 p.m. and 5.30 p.m. on each Wednesday following a weekend on which the children have not seen the husband, and for this purpose the husband to initiate a call to the wife’s mobile telephone number, or such other service of which the wife, through her solicitors, provides the husband with details, and the wife ensure that the children can speak privately to the father and she be at  liberty to record such conversations provided she does so lawfully and without the children at any time being made aware of such recording is taking place.

5. That for the purposes of changeover pursuant to Order 5 of Orders made on 29 April 2008, changeover shall occur at the McDonald’s Family Restaurant in M adjacent to the serving counter.

6. That pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be released to the parties on or before 19 August 2009.

7. That for the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.

8. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

9. That the people to be interviewed for the preparation of the Family Report will be at the discretion of the Family Consultant, subject to any further order made, but the father should do all acts and things necessary to ensure that his partner, Ms G, is available if called upon for an interview.

10. That until further order each parent do all acts and things necessary to ensure that the Family Consultant has any authorities that may be necessary to discuss with any psychologist or counsellor consulted by the parties matters in relation to the parties (or either of them) and the children, NOTING THAT the father has previously consulted Ms W and the wife has consulted Dr J.

11. That the parties do all acts and things necessary to peruse the documents produced on subpoena to the Court now and to identify such documents as they may wish to rely upon at the trial, and do so for the purpose of the preparation of a Court book.

IT IS ORDERED BY CONSENT:

1. That the husband and the wife forthwith engage the services of Mr A, Valuer, to provide a sworn valuation of the former matrimonial home situated at K.

2. That the husband and the wife shall follow all lawful directions of the said Mr A in relation to the said valuation.

3. That the cost of the said valuation shall be paid for out of the redraw facility attached to the mortgage over the former matrimonial home and the husband and the wife shall do all things and sign all documents necessary to arrange for such payment forthwith upon demand by the said Mr A.

4. That the husband and the wife shall advise each other of the current valuations of each of their cars and forthwith advise the other of any objections to such valuation.

5. That the wife shall within 21 days provide to the husband copies of the following documents:

a)      all bank statements related to their mortgage over the former matrimonial home from 30 March 2007 to date; and

b)all statements related to the Commonwealth Bank joint account number … from 30 March 2007 to date.

IT IS FURTHER ORDERED:

1. That the husband shall within 21 days provide to the wife all statements related to the Commonwealth Visa account … from 30 March 2007 to date.

   IT IS NOTED THAT:

A.     The wife maintains that she has not received the following items from the husband;

(i)            5 x 50 cent Captain Cook special edition pieces;

(ii)           3 x gold plated ruby plates;

(iii)         1965 VSOP Champagne Cognac;

(iv)          one camphor wood chest;

(v)           one Voightlander camera flash;

(vi)          one lace table cloth;

(vii)         wife’s Uncle F’s 4 x World War II war medals;

(viii)        crystal punch bowl and 20 cups;

(ix)          3 x Anne Geddes baby albums and 2 x school photo albums.

B.     The wife maintains the husband has been ordered to provide the following and this has not been done:

(i)          Children’s bank books with the Commonwealth Bank;

(ii)         T’s health record books;

(iii)        R’s original birth certificate; and

(iv)        the Children’s keep sake book (teddy bear chest).

IT IS FURTHER ORDERED:

1. That until further order, each party is at liberty to cause subpoena to produce documents to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Riddiford for the return of subpoenae.

2. That each party has leave to contact Registrar Riddiford to arrange to have this matter listed for mention before himself or before me, on notice to all other parties, to seek any further directions as any party considers are necessary to ensure that the matter is ready for trial or to narrow the issues in dispute.

3. That by not later than 7 days prior to the final hearing date, each party file and serve:-

   a.a case outline document about parenting matters; and

   b.a list of documents to relied upon by that party in relation to parenting orders

   and send same to my Associate, to facsimile … or email ….

4. That the case outline document about parenting matters summarise the arguments in support of each party’s case including, but not necessarily limited to, the following issues:-

   a.Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and

   b.Whether it is the best interests of the children C born … July 1999, T born … August 2001 and R born … October 2005 to spend equal time with each parent and, if not, why not; and

   c.Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and

   d.What parenting orders are sought by that party;

   e.Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.

5. That not less than 2 clear days prior to the hearing date the independent children’s lawyer provide to each other party to the proceedings and by facsimile to my Associate:-

   a.a chronology of relevant events;

   b.a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;

   c.a list of documents upon which the independent children’s lawyer intends to rely.

   and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.

6. That notwithstanding any previous direction to the contrary, not less that 7 days before the final hearing each party file and serve and provide to my Associate by e-mail:-

   a)a list of documents upon which that party will rely at trial in relation to alteration of property interests and financial matters;

   b)a list of assets divisible between the parties (including any add-backs);

   c)a summary of argument for financial matters including but not limited to the following matters relating to a final alteration of property interests:-

   i.the contribution based entitlement claimed, expressed as a percentage of the net value of assets -

   1.   as at final separation;

   2.   at the time of trial;

   ii.in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend:-

   1.   during cohabitation;

   2.   since separation

   iii.any other matters relevant to a division of property  including any adjustment to the contribution-based claim (if any) expressed as a percentage of the net value of the assets divisible between the parties having regard to the factors in s79(4)(d), (e), (f) and (g);

   iv.in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;

   d)a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-

   v.the date and outcome of the last conference between experts;

   vi.the particular matters upon which there is no agreement between experts;

   vii.what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;

   e)a summary of argument in relation to any other financial relief which is sought including spousal maintenance;

   f)a minute of the Orders which he / she seeks be made at the final hearing.

7. That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties and the independent children’s lawyer.

8. That in the event that this matter resolves prior to the hearing date, the solicitors for the parties and the independent children’s lawyer notify my Associate promptly.

9. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12017 of 2007

MS METTRICK

Applicant

And

MR METTRICK

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as the first day of a less adversarial trial.  The parties have had the benefit of the parent and children's issues assessment prepared by Ms N, the designated family consultant.  Ms N has sat in on the proceedings today and had an opportunity to hear the submissions of the parties through the counsel in the case of the mother and by the husband who represented himself. Ms N was sworn and confirmed the contents of her issues assessment.[1]

   [1] Section 69ZU provides that the court must not, without consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.

2. The final determination of the matter will proceed to hearing at the earliest possible time which is 17 August 2009. Ms N will prepare a full family report to be released by the 10 August 2009.

3. The matters which require interim determination by me today are applications made by the father who appears on his own behalf.  He seeks an increase in the face-to-face time between himself and the three boys, C, T and R, and some telephone communication.  He also seeks a change in the venue for time to be spent in Melbourne.

4. C is nearly 11 years old, having been born in July 1999. T, born in August 2001, is nearly 8 years old. R, born in October 2005, is 3 years old.

5. The operation of current orders is that the boys spend time on three out of four weekends with the father.  That is, each second week in southern New South Wales at a contact centre from 1.00 pm to 3.00 pm and then on the third week from 11.00 am to 3.00 pm under the supervision of the paternal grandmother. This usually takes place at the father's home which is the former family home, and the orders require that the changeovers be effected at M Police Station.

6. There is no order for telephone communication but the father seeks that one be made.

7. The father seeks that the face-to-face time be increased as much as possible.  He ideally seeks a period of two weeks with the children during which they have only telephone communication with their mother daily and thereafter he seeks alternate weekends.  He is willing to take alternate weekends without a lead up time.  Realistically, however, he has curtailed his application today and, being as conservative as he feels he can be, he seeks that the Melbourne visits be increased to eight hours in duration. He would not object to those Melbourne visits being supervised on the first or second of such occasions either by his mother or his girlfriend, Ms G, but thereafter, he says that they should be unsupervised.

8. Ms G has attended court.  She has not given evidence.  There is no affidavit.  The designated family consultant has not interviewed her nor spoken with her.  I do not know whether the independent children's lawyer or their counsel has interviewed her.  I have reminded the father that if he represents himself he is responsible for presenting his own case and at the moment we have no evidence about Ms G.

9. The father seeks telephone communication on the week that he has not seen the children the previous weekend. He seeks that the communication be for approximately 30 minutes once or twice a week.

10. The father also seeks that the changeover point for the Melbourne time not take place at M Police Station but take place at a McDonald's family restaurant.

11. All of the applications of the father are opposed by the mother.

12. It was submitted on behalf of the mother that she is particularly concerned about any unsupervised time between the children and the father.  This includes any time which is an adjunct to the already supervised time in southern New South Wales.  I gather that she is concerned about the children's physical safety, their emotional wellbeing in terms of being reminded of traumatic events to which she says they have been subjected in the past and she is concerned that they will be subjected to interrogation and questioning by the father in relation to her and her care of the boys and generally. Ms N describes some of the ill treatment of which C complains as:-

    his father used to smack him, throw him on the couch, and drop him on the floor … he was the only one hurt by his father, who stopped doing this [to] him when he and his brother and mother left the marital home.

13. In determining this matter, I follow the pathway set out in Goode v Goode (2006) FLC 93-286.

14. I take into account the two basic principles in child-related proceedings. They are the need to protect children from physical or emotional harm or jeopardy and to assess prospectively the benefits for the children of having a meaningful relationship with each parent.  In this case, there is a tension between the two core ideals in the legislation.

15. I have regard to the various additional considerations which are relevant, including the children's views, which at this point I accept would likely be conservative.  The father says that the children have, at all times and from the earliest possible time of being reintroduced to them after a break of some seven months, said that they want to spend time with him and live with him.  However, it seems that the children are expressing somewhat more conservative views now. The family consultant records that C “made it clear that he did not want to spend any time with his father, and that although he has said the same thing to everyone, it doesn’t happen.”

16. The children are disparate in ages, but the experiences that they have had since the parties' separation, including being relocated to rural Victoria, would lead me to be cautious about placing weight on their views. At this age and in their present environment their views are likely to be more reflective of those who care for them than necessarily based on personal experience.

17. I take into account the effect of changes on the children and the reality that children generally respond well to a routine.  The father's proposal of extending the time in Melbourne would subject them to either staying overnight in Melbourne with their mother or alternatively, having her drive back to northern Victoria and not arrive until possibly the early hours of the morning. I consider that to be an undesirable consequence.

18. I take into account generally the alleged parenting capacity of each of the parties.  The mother's case is largely based, as I appreciate it, on a history of violence and fear of future violence.  She says that there is a sound basis for this fear having regard to mistreatment of her and the children by the father during the marriage.  I am not taken, however, to any expert evidence which indicates that the various ways in which the father wants to alter the orders would impact adversely upon her capacity to parent the children generally.

19. I must query the parental capacity of the father in circumstances where he was seeking that the children spend time with him for two consecutive weeks, communicating with their mother only by telephone during the day.  I wonder if he has paused to reflect on what that would feel like for these little boys who have had very limited contact with him for a significant period. 

20. What was sought was some indication of the extent to which the contact centre could accommodate a changeover an hour or two before the supervised time in southern New South Wales.  The proper officer was not contactable.  The father, who seeks a variation in times, has not been in a position to address the court in relation to the availability of the contact centre to accommodate the family.  That is understandable.  It is not his primary application.

21. Following discussion of the matter, including the valuable contribution by Ms N, I am not going to alter the orders for face-to-face time in relation to duration.  However, I will record that it is open to the independent children's lawyer to make the inquiries of the contact centre as to whether there could be something up to an hour of time between the father and the children to take place immediately prior to one of the supervised visits each month.

22. If it is available, the independent children's lawyer can advise the parties appropriately.  The parties, however, at this stage will not be obliged to cooperate.  I will leave it as a matter in which they can make independent judgments and no doubt those decisions will be scrutinised at the final hearing which will take place in August 2009.

1. In relation to the location for changeovers, I am disinclined to require the family to continue to attend at a police station.  Family violence is always a concern to this court.  So too, however, is the image the children have of themselves and of their parents. Generally, I am not in favour of changeovers being effected at a police station.

2. The father seeks a changeover at a McDonald's family restaurant or some other public place.  The mother opposes that quite strongly.  Through her counsel she stressed that the father is likely to behave better in a police station, that the environs of a police station are likely to "encourage better behaviour" and that the "police can come to the mother's assistance if need be" or words to that effect.  It was impressed upon me, and I accept, that the mother is very nervous of any change away from a police station.  As I have said, I have no expert evidence to indicate that her capacity to care for the children will be compromised by the added obligation of going to a McDonald's family restaurant.

3. Expert evidence about the impact on the mother’s parenting capacity of the changes to parenting arrangements sought by the father is something to which the practitioners for the mother will obviously have to give consideration in the context of the final hearing.

4. I am informed by the counsel for the independent children's lawyer that McDonald's family restaurants are carefully and thoroughly surveilled by video cameras at least within the eating areas.  I am satisfied that in this short period between now and a final hearing, the children will be appropriately protected from parental conflict if changeovers are effected at a McDonalds restaurant. I will order that the changeovers be effected adjacent to the main serving counter of the McDonald's family restaurant at M.  The mother through her counsel says that there is insufficient room there.  The family is just going to have to fit and they will need to effect the changeover fairly promptly.

5. The mother did say that if she was unsuccessful in this application she would prefer the play area of the McDonald's family restaurant in M.  I am not going to order that for two reasons.  One is that I do not know that that area is surveilled as thoroughly as the food part of the establishment.  Second, I do not want the children playing on the play equipment, some of which conceals them completely, and not being able to be left with the father.  It is appropriate for them to be distracted by their surrounds for the purpose of changeovers but I do not want them to be invisible or not recoverable.

6. The next issue is telephone communication.  The mother opposes any time, including the 30 minutes sought once or twice a month by the father.  She does so on the basis that the father has been directed not to ask questions about the mother and it is submitted that he has done so in a supervised contact setting.  I have heard the passages relied upon by the mother.  There was one reference to the mother. If that is accurate, it is a statement which could reasonably be intended to place the children in some conflict with their mother rather than make them helpfully or pleasantly disposed to her. In short, if the father said it, he should not have done so.

7. Neither of the parties have today taken an oath.  I purposefully did not turn to the father to admit or deny what he said.  That can be a matter for the final hearing.  In the meantime, I will order that there be some telephone communication.  It will be between 5.00 p.m. and 5.30 p.m. on the Wednesday which follows a weekend when the children have not been entitled to see the father pursuant to orders of this court.  The communication does not need to last for 30 minutes.  It can be a brief conversation with each child or such of the children who are disposed to speak.  That can be effected by the father telephoning the mother's mobile telephone number which I understand he already has or such other number as the solicitors for the mother notify to the father in writing not less than seven days before a scheduled telephone communication on that day. 

8. As to the mother’s concerns, the mother is at liberty to record the conversations between the children and the father subject to two provisos.  The first is that she do so lawfully and that is a matter of telecommunications regulation of which the mother and her practitioners should satisfy themselves.  Second, any recording of the conversation must be unknown to the children so that they do not apprehend that there is anything unusual or sinister about talking to their father on the telephone or that they have to be mindful of what they say.  I do not want the monitoring of the conversations to intrude into any enjoyment they may have in speaking with the father.

9. Between now and a final hearing my view is that the children are unlikely to be subjected to inappropriate behaviour.  It is a period of intense scrutiny.  In my view, the orders as I have changed them or foreshadowed that they may be changed by agreement between the parties, permits in a conservative way the children to have the benefit of some relationship with their father.

10. I am satisfied at this point that the orders which I have made today are consistent with the best interests of the children. 

11. As I have mentioned, this is a matter which requires some determination of facts before I can be satisfied what the appropriate care arrangements are for the children in the longer term.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date: 19 October 2009