Mettrick & Mettrick (No. 2)

[2014] FamCA 507

FAMILY COURT OF AUSTRALIA

METTRICK & METTRICK (NO. 2) [2014] FamCA 507

FAMILY LAW – CHILDREN – Matter adjourned part-heard – cessation of telephone communication between father and the children in the meantime – cautious outcome in best interests of children - mother entitled to appear remotely by video link to make final submissions

APPLICANT: Mr Mettrick

RESPONDENT: Ms Mettrick

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms S Sheed

FILE NUMBER: MLC 12017 of 2007

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER : SMR Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER : Mr P Testart

Orders

IT IS ORDERED THAT:

1.The matter be adjourned part-heard to Friday 18 July 2014 at 10.00 am (“the adjourned date”) AND IT IS REQUESTED that the family consultant, Ms L, attend on that day for cross-examination.

2.Subject to any further order of the Court, this matter be further adjourned after 18 July 2014 to Wednesday 23 July 2014 for final submissions.

IT IS FURTHER REQUESTED THAT:

3.The Registry Manager of this Court make arrangements with the Proper Officer of a Courthouse in E Town, or close by to E Town, to permit the mother to attend the hearing on 23 July 2014 by video link between this Court and the facility in E Town or close by.

IT IS DIRECTED THAT:

4.My Associate keep the parties apprised of the arrangements for the video link.

UNTIL FURTHER ORDER IT IS ORDERED THAT:

5.Paragraph 6(i) of the Order made on 17 February 2012, pursuant to which the father have telephone communication with the children B born … 1999, C born … 2001 and D born … 2005 this coming weekend, be suspended.

6.For the avoidance of doubt, the father be and is hereby restrained by himself his servants and or agents from causing permitting or suffering any other form of communication or time between himself and the children (or any of them) between now and the adjourned date, including communication by any electronic means.

IT IS FURTHER ORDERED THAT:

7.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

8.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 by this Court under the pseudonym Mettrick & Mettrick (No. 2) has been approved by the Chief Justice 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

Mr Mettrick

Applicant

And

Ms Mettrick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter has been adjourned part-heard to 18 July 2014 when it is anticipated that the evidence of the family consultant, Ms L, will be concluded.  I have indicated that the matter will then be adjourned to 23 July 2014 for final addresses. 

2. On 18 July 2014, all parties are required to attend court.  On 23 July 2014, I am prepared to excuse Ms Mettrick, (“the mother”) from attending court in person in Melbourne, provided that there can be an arrangement that she be linked in via video between this court and the Magistrates or other court in E Town.

3. If the mother appears by video-link, she must be able to be understood and to follow the proceedings here entirely and to respond to any questions that might be asked of her.  She should have all of her documents available to her and in front of her on that day and be in a position to make her final submissions and to hear the final submissions of the other parties.  As I have said on a number of occasions in this hearing, the purpose of a final submission is to tell the Court what orders that party seeks and why and how the evidence supports that outcome. It is not an opportunity to introduce new evidence or to fill in gaps in the evidence.  It will also be necessary to make submissions about the credit of each party.

4. The mother will need to have access to all exhibits. She may not be actually sitting in a court room.  It might be conducted in the precincts of the court, in an interview room.  But it will, for all intents and purposes, be as if she is here. 

5. Mr Mettrick, (“the father”) asked if the same arrangements could be made in relation to him to participate remotely.  I have declined on the basis that they can only be made, in my view, for one parent.  It is not practicable to make those arrangements for both parents.  This is an extremely high conflict case.  There is an intervention order which prevents the father approaching the mother.  I do not consider it appropriate that I burden the administrators of any court in E Town or elsewhere with the problems that arise in this case, and the way to do that is to keep one party here. 

6. The next matter that falls for determination is what happens to the time that the children are entitled to spend with the father, and the communication they are entitled to have, between now and the adjourned dates, the last of which is 23 July 2014.  I understand that the time that they could expect to have is time on 18 July 2014 for a weekend that would go from the conclusion of school on that day to the commencement of school on the following Monday.  That is not going to be practical because the father is going to be in Melbourne, in any event, possibly until 5 o’clock on Friday night. 

7. There is also telephone communication which would occur this weekend on 13 July 2014, and then there is the other sorts of communication that the father says that he has been having with the children, he says, with the tacit approval of the mother and the Independent Children’s Lawyer says contrary to orders of this court.  I’m not making any order in relation to a suspension of weekend time at the moment, because I can do that on 18 July 2014.  I postpone any decision in that regard because the evidence of the family consultant isn’t complete. 

8. It has been a long day.  It may be that the family consultant gives some evidence on the next return date that is relevant to whether or not time should be suspended, but she has today indicated that she thinks it should be suspended.  There certainly does appear to be some good reason for suspending it, but it’s a premature decision at this stage so I won’t make it now.  I will give it more consideration and determine it, if I have to, on the 18^th. 

9. However, what happens to the telephone time?  There is one phone call where the children would ordinarily speak to their father this Sunday.  There has been a great deal of evidence directed to the father’s apparent inability to understand the impact of what he says on others including the children.

10. There is a letter in evidence which the father gave the children at the conclusion of the last period of weekend time he spent with them, which reads to me as having overtones of being a farewell letter, a goodbye letter, a message to the boys that, unless things change, he may cease to be part of their life.  For these purposes, it’s relevant that the father says it wasn’t intended in that way at all.  It was just merely to tell them that he loved them.  That’s a recent and particularly poignant example of there being some discrepancy between what the father says and what he fails to appreciate the impact of it may be on others. 

11. I must act cautiously when making orders in relation to children.  I make orders in relation to the children consistently with their best interests.  I take into account the primary considerations, the most important of which is the need to protect them from family violence and abuse. 

12. I also take into account the benefit of them having a meaningful relationship with the father.  I do not see that missing one phone call will impact upon the relationship they have with the father.  However, with the evidence that I have to date in this part-heard hearing, there is some possibility that for him to have the conversation with the boys at this time could impact adversely on either their relationship with him or their relationship with their mother.  Accordingly, I will suspend the order for communication which would otherwise operate this coming weekend. 

13. The father has maintained contact with the children by various electronic means, which have been the subject of evidence in this hearing. 

14. There is a debate as to whether or not the current orders prohibit such communication.  For the avoidance of doubt and so as to be abundantly clear, I will order that there is to be no such communication.  That means that if the boys communicate in some way with the father, he must decline to enter into communication with them.  He can’t respond.  He can’t have a conversation. 

15. There is to be no communication by electronic means or any other means that have been outside the orders and up to date.  That concludes the reasons. 

16. This decision should not be interpreted as indicative of how I will decide the whole case.  On the father’s own evidence, he does not know how he will react to a final decision which is not what he seeks or which falls short of what he perceives the boys need.  He is obviously upset and puzzled now.  In suspending the telephone communication, I am acting cautiously rather than pre-empting the final outcome.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 July 2014.

Associate: 

Date:  14 July 2014