Moxey & Keirn
[2021] FamCA 615
•24 August 2021
FAMILY COURT OF AUSTRALIA
Moxey & Keirn [2021] FamCA 615
File number(s): SYC 6197 of 2019 Judgment of: MCCLELLAND J Date of judgment: 24 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Review of a Registrar’s decision – Where the Applicant seeks a review of the Registrar’s decision to allocate an interim hearing date – Where the Registrar adjourned the interim hearing to allow for the production of subpoena material and the Father and Independent Children’s Lawyer to respond to the Mother’s case – Where cases should be resolved in a “just and timely manner” at a cost that is reasonable including to the Court – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 91B
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Family Law Rules 2004 (Cth) rr 1.12, 15.06
Cases cited: Camm v Linke Nominees Pty Ltd (No. 4) [2013] FCA 223
Newman & Tate [2020] FamCA 1114
Number of paragraphs: 72 Date of last submission/s: 11 August 2021 Date of hearing: 11 August 2021 Place: Sydney Solicitor for the Applicant: Holmes Donnelly & Co Solicitors Appearance for the Respondent: Mr Keirn in person Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers ORDERS
SYC 6197 of 2019 BETWEEN: MS MOXEY
Applicant
AND: MR KEIRN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND J
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.The Mother’s Application in a Case filed on 27 July 2021 is dismissed.
2.In the event of the Independent Children’s Lawyer seeking an order for costs, the Independent Children’s Lawyer is to, within seven days, provide a submission of no more than two pages to my Associate and each other party.
3.The Mother has leave to reply to any such submission on costs, pursuant to Order (2) above, within seven days of its receipt provided that any such response will similarly be limited to two pages.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moxey & Keirn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an Application in a Case filed on 27 July 2021 (the “Review Application”) by Ms Moxey (“the Mother”) seeking a review of a decision of a Registrar of this Court in respect to the date allocated by the Registrar, to hear the Application in a Case filed on 26 May 2021 by the Mother (“the substantive Application”) concerning the children C, born in 2013, and B, born in 2010.
The Mother, by her substantive Application, seeks, inter alia, a variation of parenting orders, a recovery order of the children, and certain restraints. Issues that gave rise to the recovery order have since been addressed.
The Review Application is opposed by the Father Mr Keirn (“the Father”).
Specifically, on 22 July 2021, the Registrar made orders which were in the nature of trial directions to assist the parties and the Independent Children’s Lawyer (“ICL”) to prepare for and present their respective cases addressing the issues raised in the Mother’s substantive Application.
The Registrar also made a notation noting the interim parenting orders made on 1 June 2021, which effectively remain in place until 20 October 2021 being the date listed for the hearing of the Mother’s substantive Application.
In the hearing of the Review Application before me on 11 August 2021, I was informed by all of the parties including the ICL, that those parenting orders, save in one respect, were made by consent. The one area, which related to the time that the eldest child is to spend with the Mother, which was adjudicated by the Registrar, was decided in the Mother’s favour.
In making the orders on 22 July 2021, the Registrar dismissed the Mother’s application for expedition, but nonetheless set the matter down for hearing on the first date that she had available to conduct the hearing of the substantive Application which was 20 October 2021.
For reasons which I set out below, I have dismissed the Mother’s Review Application for review of that decision as filed on 27 July 2021.
APPROACH AND THE LAW – CONCEPTS AND PRINCIPLES
Nature of a review of a Registrar’s decision
I set out the approach of the Court and relevant legal principles in respect to the conduct of a review of a Registrar’s decision in Newman & Tate [2020] FamCA 1114 at [9]–[12]. Essentially, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing which, requires the re-examination of the matter afresh.
BACKGROUND
The substantive proceedings concern an Application for Final Orders filed by the Mother on 11 December 2019, in respect to parenting arrangements for the parties’ two children, B, presently 11 years of age and C presently 8 years of age.
The current proceedings occur in circumstances where proceedings between the parties first commenced in this Court on 19 December 2014.
The parties’ commenced living together in 2005 in Country HH before moving to England where they married in 2006. They remained living and working in England until late 2014. Both of the children were born in England and hold dual New Zealand and British citizenship.
The parties moved to Australia on 13 October 2014 and, since that time they have both obtained employment and continue living and working in Australia.
The parties separated on 21 November 2014 but they remained living under the one roof until 5 January 2015.
By interim orders made on 16 April 2015, by Rees J, the children were to live with their Father each Wednesday from 5 pm until the following Thursday at 8.30 am and each alternate weekend from 9 am on Saturday until 5 pm on Sunday [21].
On 12 July 2017, judgment in the final hearing was delivered by Rees J, and parenting orders were made by consent which inter alia provided for the Father and Mother to have equal shared parental responsibility of the children, and the children were to live with the Mother. Further, it was ordered that the children’s time with the Father was to be initially for four nights a fortnight throughout 2017, and that time was to gradually increase to five nights a fortnight commencing in Term 1 2018 and finally, to six nights a fortnight from Term, 1 2020.
Relevantly, for the purposes of this decision, in her Honour’s judgment dated 12 July 2017, Rees J considered the allegation made by the Father that, on several occasions, the children had been placed at risk as a result of the Mother’s excessive consumption of alcohol. Specifically, consideration was given to an event which occurred on 29 September 2016 when an ambulance was called to the Mother’s home as result of injuries she sustained. The children were in her care at the time. At paragraph 167 of her Honour’s decision, Rees J noted that the Mother’s account of the incident was as follows:
On Thursday, 29 September 2016 at about 5:15 pm in the afternoon I sent a text message to [Mr W], a friend. [Mr W] texted me back and told me to relax and breath (sic) and asked if I wanted to join him at the Z Hotel. I declined as I had the children in my care and I texted back, to the effect of ‘would you like to come over to my home instead’. [Mr W] agreed. I had a glass of wine and I felt a bit lightheaded. I had not eaten that day and had eaten little the day prior, I had not been feeling well throughout the course of the day and did not feel well throughout the course of that evening. I had another glass of wine and felt dizzy. [Mr W] played with the boys around the table and I stayed sitting. I got up from the dining room table and walked down the hallway of the house and I tripped on the floor mat and banged my head, when I fell backwards. [Mr W] found me on the ground with blood on my head and called an ambulance. The police arrived as well. I was sedated in the home and I woke up in the hospital, the head scan was completed and three metal staples were placed into my head to seal to the wound (sic). I had never fallen in the home before and I was embarrassed by the whole situation. The police inspected the home, concerned of what occurred and observed one empty bottle of wine and 2 glasses.
At paragraphs 174 – 177 of her decision Rees J stated as follows:
In cross-examination, and after the production of documents by the police, the ambulance service and the hospital, it was apparent that the wife’s version of that event was, at worst, deliberately untruthful and, at best, minimised.
The records produced by the NSW Police state:
At 5:00 pm on the 29th of September 2016, the patient sent multiple text messages to the witness asking how she was able to go to the media regarding her divorce. The patient agreed for witness (sic) attend her house, have dinner with her and her children and discuss the divorce proceedings. The witness was previously dating the patient in May 2016 however they had no communication for around a month. Around 5:30pm, the witness attended the patients address and observed her to be highly affected my (sic) alcohol as she was falling off the chairs at the dinner table and was staggering around the house. The patient burnt the dinner she was cooking so the witness ordered pizza. They all ate dinner together and the witness played with the children. Around 8:30pm, the witness left the residence to make a phone call and obtain items from his vehicle. The witness spoke to a friend on the phone for nine minutes before returning inside and seeing the patient laying on the ground with thick blood on the floor underneath her. The witness ran outside to obtain the street address and house number before calling an Ambulance. The witness ran back inside to see the patient where he found her in her childss (sic) bedroom. He observed blood over the floor and walls of the house. Her two children were in the bedroom with the patient when the witness walked in. The witness asked the patient to apply pressure to the wound with a towel to which she replied “who are you” and “why are you in my house”. Due to causing stress to the patient he walked outside to wait for paramedics. Paramedics found the patient on the ground outside the residence. She was conveyed to GG Hospital for treatment of a head wound. At time of writing the doctors were awaiting test results for scans on her head. The Doctor stated she cannot remember at this stage how she obtained the laceration however was continually asking asking (sic) for her children. The children were conveyed by police to their fathers address which was located around the corner. … It was later discovered the patient had slipped on a matt (sic) in the hallway of her residence and hit her head, sustaining a laceration to the front right side of her head.
Ambulance records produced by the GG Hospital state:
c/t collapse with head injury. o/a 43 year female home with 2 small children. pt sent a friend bizaare (sic) text messages and friend came over to check on patient. friend found blood and diarrhoea up the hallway and patient collapsed on floor ... 2 small children unattended. friend then called cda. when cda arrived pt downstairs screaming hysterically with inappropriate responses eg “my kids are fine”, blood and diarrhoea everywhere all up the inside hallway and all over patient. cda sedated patient with good response, police arrived on scene and treating house as a crime scene. o/e pt has multiple contusions – right parietal with abrasion and bleeding heavily, haematoma to forehead and bridge of nose. nil other obvious injuries, chest sounds clear and equal, moving all limbs and nil obvious injuries to torso. pt denies medical hx, medicaitons (sic) and allergies. currently in a custody battle with ex husband and has been stressed/emotional. en route pt states no one else was on the scene with her and her kids prior. states she drank too much and fell over.
The wife was taken to GG Hospital Emergency Medicine Unit, the diagnosis on admission being acute alcohol intoxication. It was noted that on admission she smelt of alcohol and was incontinent of urine and faeces. Blood tests revealed an alcohol level of 0.34 per cent.
At paragraphs 234 and 235 of her decision Justice Rees stated as follows:
In cross-examination, Dr N was asked, by counsel for the ICL, to review the documents produced by GG Hospital in relation to the wife’s admission on 29 September 2016. Dr N said that the notes indicated that the wife was admitted in a state of acute alcohol intoxication. He said that the blood test revealed significant quantities of alcohol in her blood and that the recorded level indicated a very high level of alcohol content. He said that it was commonly recognised amongst clinicians that any reading over 0.3 per cent is indicative of a very severe alcohol intoxication and enough to cause people to collapse into unconsciousness. He noted that the wife on presentation had been incontinent and that she required anti-psychotic medication. Dr N said that the wife’s high level of agitation, disorientation, and screaming hysterically were all explained by her alcohol level. Asked whether the observations of the hospital could be explained by the wife having consumed two glasses of wine, Dr N said “definitely not”. Dr N also said that the fact that the wife had not eaten and the fact that she was taking anti-depressants would not have affected the level of alcohol in her system to such an extent.
However, Dr N said that it was his understanding that this was a single episode of extreme alcohol intoxication. He said it was highly concerning that the children were in her care at the time, but it was indicative that she was agitated at the time. Although he said that, as a one off episode, this was extremely concerning, he saw no evidence in the records produced by the hospital or in his assessment in 2016 that there had been a significant history of alcohol abuse by the wife, there was no history consistent with binge drinking and there was no evidence that the problem was likely to be ongoing.
Accordingly, a significant issue before the Court, in respect to the current proceedings, has its origin in that attempt by Dr N to predict the future and specifically his opinion that the potential for the Mother to engage in binge drinking was unlikely to be an ongoing problem. The Father contends, that, unfortunately, Dr N’s prediction was wrong and it has been an ongoing problem.
While it is unnecessary for me to make a finding in respect to those competing positions, there is sufficient evidence before the Court to suggest that, if it has not, in fact, been addressed, there is a risk of the children being exposed to binge drinking in the Mother’s care.
On 16 September 2019, the Mother filed a further Application for Final Orders in the Federal Circuit Court of Australia.
In her supporting Affidavit filed on the same date, at paragraph 11, the Mother alleged that the Father, on 20 November 2017, became confrontational at a point of changeover and was subsequently convicted of two counts of assault in the Suburb JJ local Court in May 2018 for which he received a good behaviour bond and a final Apprehended Violence Order issued for a period of 12 month. The Mother, at paragraph 12 of her Affidavit, noted that the Father successfully appealed that conviction however the Apprehended Violence Order remained in place.
The Mother’s Affidavit, more generally, made a number of imputations against the Father alleging that he had engaged in conduct that can broadly be described as coercive and controlling and included she contended, financial abuse.
Specifically at paragraph 44, the Mother contended that, as result of being exposed to the Father’s conduct and the conflict between the parties, it was necessary and appropriate for the July 2017 Final Parenting Orders to be discharged to reduce the amount of time that the children spent with their Father to remove their anxiety and until such time as the boys become, “more resilient and each develop the emotional skills they need to spend [a] longer period of time with the [Father] as they grow into adolescence.”
On 11 December 2019, Judge Kemp of the Federal Circuit Court of Australia transferred the matter to this Court.
In the period subsequent to the matter being transferred to this Court the matter has been listed for several case management events before various Registrars of the Court.
As result of the Father failing to return the children to the Mother’s care in the period subsequent to 5 May 2021 as required by the orders made on 12 July 2017, on 26 May 2021 the Mother filed the substantive Application, as set out earlier, seeking amongst other matters, a recovery order of the children.
On 1 June 2021, the Mother’s substantive Application was listed before Senior Registrar Hayward, at which time the Registrar made the following orders:
1. All previous parenting orders are suspended
2.The child, C born in 2013 live with the Mother and spend time with the Father in a two-weekly cycle as follows:
2.1. In week 1:
2.1.1.From the conclusion of school on Wednesday (or 5.00pm if he is not in attendance at school on that day) until the commencement of school on the following Monday (or 8.00am if he not in attendance at school on that day).
2.2. In week 2:
2.2.1.From the conclusion of school on Wednesday (or 5.00pm if he is not in attendance at school on that day) until the commencement of school on Thursday (or 8.00am if he is not in attendance at school on that day).
3.The child, B born in 2010 shall spend time with the Mother as agreed between the parties, and failing agreement, as follows:
3.1.Each Tuesday from the conclusion of school (or 5.00pm if he is not in attendance at school on that day) until 8.00pm.
3.2.Each Thursday from the conclusion of school (or 5.00pm if he is not in attendance at school that day) until 8.00pm.
3.3. On Sunday 6 June 2021, Saturday 12 June 2021 and Sunday 20 June 2021, from 8.00am until 5.00pm.
3.4.At the conclusion of Order 3.3 herein, and from Friday 25 June 2021 and thereafter:
3.4.1.On each alternate weekend, from the conclusion of school on Friday (or 5.00pm if he is not in attendance at school on that day) until the commencement of school on Monday.
3.5.B shall have access to his mobile phone when he is spending time with the Mother between the hours of 8.00am to 8.00pm.
4.he Father and the Mother be and is hereby restrained by injunction from discussing with the children, or either of them, any matter pertaining to these proceedings, or a change of their present residential arrangements, without the prior written consent of the other parent, or by leave of this Honourable Court.
5.The Father and the Mother be and is hereby restrained from denigrating or making negative comments about the other parent in the presence or hearing of the children, or either of them.
6.The Father and the Mother must use their best endeavours to prevent any other person from doing any act or thing that has intention or effect, the denigration of the other parent in the presence or hearing of the children, or either of them; including but not limited to instructing any family member or person with whom the children are cared for, not to say or do anything which has intention or effect of the denigration of the other parent.
7.On a without admission basis, the Mother be and is hereby restrained from consuming alcohol prior to and during the time the Mother is spending with the children and have the children in her care.
8.On a without admission basis, the Mother be and is hereby restrained from using any form of corporal punishment as a means of disciplining the children.
The orders also provided for the arrangement of a Child Inclusive Conference and the appointment of an ICL. The orders further provided for random drug and alcohol testing.
Consequent upon the making of those orders, the matter was adjourned by the Senior Registrar to again come before herself on 22 July 2021 for interim hearing. Those orders also included directions to facilitate the efficient preparation for, and hearing of, the parties’ respective interim applications. The orders also provided for the legal representatives of the parties to inspect documents produced pursuant to subpoenas and for the self-represented party who wished to inspect the subpoenaed material to attend the Sydney Registry with a view to marking up, by way of use of a plastic tab or Post-it note, any relevant pages which they wished to tender in the proceedings.
On 22 July 2021, the matter came before the Senior Registrar, who, as earlier noted, refused the Mother’s oral application for the matter to be given an urgent hearing, and adjourned the matter to before the Senior Registrar on 20 October 2021. It is acknowledged that, as result of the current restrictions on movement due to the New South Wales public health regulations responding to the COVID-19 pandemic, that the Father has not, as at the date that this matter was heard by me, had the opportunity of inspecting documents produced to the Court under subpoena’s which have been issue in the proceedings.
By way of broad summary, in the proceedings, commenced by the Mother’s substantive Application, which are currently listed for hearing before the Registrar on 20 October 2021 the Mother alleges the following:
· That the father withheld the children in his care in respect to the period from 5 May 2021 until orders were made on 1 June 2021.
· The Mother is concerned that the parties eldest child B was pressured by the Father to report to police that at times that he has been in the Mother’s care she has been “intoxicated” and “hit” and “slap” him.
· Those allegations are strongly denied by the Mother.
· Until parenting orders were made on 1 June 2021 the Mother contends that, in the period from 5 May 2021 to the making of those orders, that the Father permitted the children to spend time with her only on an intermittent basis according to the exercise of his discretion.
· The mother contends that the evidence establishes that the Father has coerced the children, particularly B, into making false reports to the New South Wales Police in respect to his assertion that the mother has been intoxicated and has physically struck him.
The Mother further contends, as a related issue, that the Father has been involving the children directly in the dispute between the parties and that the Father’s conduct presents the risk of ongoing and significant psychological harm to the children while they remain in his care.
Comparatively, the Father contends:
· He has acted entirely appropriately and responsibly in respect to the children and he denies that he has coerced or pressured them to make allegations against the Mother or has otherwise inappropriately involved them in the parties’ conflict. He contends that he took B to the police to report his allegations against the Mother on the advice of a school counsellor at B’s school. He contends that he made the decision to keep the children in his care in the period subsequent to 5 May 2021 as result of information which he received from the school counsellor who informed him that she had made a report concerning allegations made to her by B, to the Department of Communities and Justice (“the Department”) and also as a result of information provided to him by the children’s school principal that C had also complained to a teacher that his Mother “is mean and hits us all the time” (Father’s Affidavit filed 31 May 2021, paragraph 47).
· Further, in the context of advice which the father contends he received from the school principal, it is the Father’s assertion that the school principal advised him that she had informed the Mother that she “needs to get some help and that for the time being the children should stay with [the Father]” (Father’s Affidavit filed 31 May 2021, paragraph 49). The Father further contends that he was advised by the school principal that the mother acknowledged that she needed help and that she further agreed for the Father to collect the children from school that day even though it was not a day that they usually spent time with the Father.
· The Father contends that the time that the children spent with the Mother in the period subsequent to 5 May 2021 was in accordance with their wishes in the context of them being distressed, he alleges, as result of the conduct of the Mother.
· During the course of the proceedings the Father stated that it is his assertion that, at least up until May of this year, the Mother did have an issue in respect to binge drinking alcohol and as a result of her conduct, the children were placed at physical risk as result of the possibility of the Mother engaging in an unsafe act and/or the mother inappropriately disciplining the children including striking them and/or as a result of the children witnessing the mother being in an intoxicated state.
· The Father stated that, on the basis of information presented by the Mother, he accepts that she has abstained from drinking alcohol in the period subsequent to May 2021 and, if that can be sustained, he has no difficulty with the children spending more time with the Mother.
· Relevantly, the Father also conceded that the current arrangements whereby the two children spend differing amounts of time with each parent is unsatisfactory.
The material filed by the parties together with material produced by the Department and New South Wales Police Force on subpoena lends some weight to both of the parties’ respective concerns about the children in the other parent’s care.
On 22 July 2021, the Mother’s substantive Application did not proceed for hearing before the Senior Registrar on 22 July 2021 for reasons noted by the Senior Registrar to be as follows:
A. The interim hearing did not proceed today for the following reasons:
•The Independent Children’s Lawyer (“ICL”) filed a Notice of Address for Service on 9 July 2021;
•There are a number of subpoenas sought to be issued by the Respondent Father and ICL which have not been issued yet as a result of the current COVID-19 lockdown and are imperative to assist the court in making any further orders;
•The Respondent Father who is a Self-represented litigant has not been able to access the Court to inspect material produced by the New South Wales Police (“NSW Police”) and the Department of Communities and Justice (“DCJ”) pursuant to s.69ZW of the Family Law Act 1975 (Cth) (“the Act”);
•The Respondent Father has not had the opportunity to file any material in response to the Applicant Mother’s most recent affidavit material, filed the day prior to today’s hearing.
•The ICL has not had an opportunity to review the Child Inclusive Memorandum to Court;
The Senior Registrar nonetheless made further orders to address those difficulties which she identified as having prevented the matter from proceeding on that day including by making directions to progress the matter pending the hearing of the Mother’s substantive Application being listed on 20 October 2021. As previously noted there is no challenge to the substance of those orders, the challenge relates to the listing not being on an earlier occasion.
The orders made by the Senior Registrar were, relevantly, as follows:
PENDING FURTHER ORDER, IT IS ORDERED THAT:
1. The Mother’s application for the urgent hearing of this matter today is refused.
Listings
2.The matter be adjourned to Senior Registrar Hayward on 20 October 2021 at 11:30am for interim hearing at the Family Court of Australia in Sydney.
3.That the matter is listed before the Docket Registrar for a telephone procedural hearing on 14 October 2021 at 2:45pm to ensure readiness for the interim hearing.
Filing Further Material
4.The time frame for the Father to comply with Order 20 of the Orders dated 1 June 2021 is extended until no later than 4:00pm on 29 July 2021.
5.The Mother is to file an Amended Case Application by no later than 4:00pm on 5 August 2021.
6.No later than 4:00pm on 29 July 2021, the Father is to provide his parenting questionnaire to the Independent Children’s Lawyer.
7.No later than 4:00pm on 29 July 2021, the Father is to organise an appointment with the Independent Children’s Lawyer’s Suburb JJ office to formally inspect the material produced by NSW Police and the DCJ. The Respondent Father is permitted to view such material only.
8.The Mother and the Father are to file and serve one consolidated Affidavit in support of the orders sought, together with any other witness’ affidavits by no later than 4:00pm on 13 October 2021 noting that the Affidavit must not exceed 25 pages in length and must not contain more than 5 annexures.
9.Each party and the Independent Children’s Lawyer are to file and serve a brief Case Outline document by no later than 4:00pm on 18 October 2021 setting out:
a. a list of documents to be read in their case;
b. a precise Minute of Orders sought; and
c.a brief summary of argument touching upon the matters set out in the Act, with reference to the relevant evidence relied upon.
11.On or before 4:00pm on 18 October 2021 each party and the Independent Children’s Lawyer must forward to the Associate of the Senior Registrar at <…> an email annexing electronic copies of the material they intend to rely upon at hearing as follows:
a. The Case Outline document;
b.The respective Applications, Responses, or Minutes of Orders setting out the orders sought by each party and the Independent Children’s Lawyer, if the Independent Children’s Lawyer considers that course appropriate at that time; and
c.The Affidavit/s relied upon by the party and the Independent Children’s Lawyer.
with such documents to be consecutively paginated.
10.Neither party may rely on any documents filed after the dates as set out above without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the Interim Hearing or list other matters with priority.
Request for Departmental Intervention
12.Pursuant to s.91B of the Family Law Act 1975 (Cth), the Department of Communities and Justice NSW is requested to intervene in these proceedings and with respect to same:
a.Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been grant to the parties, their legal representatives and/or the Independent Children’s Lawyer;
b.The Department is requested to advise, in writing and within fourteen (14) days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:
i.Formally granting such leave and joining the Department as a party;
ii.Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;
iii.Relisting the proceedings on short notice to allow further case management directions to be made.
c.IT IS NOTED that the child, B born in 2010 currently lives with the Father and spends time with his Mother and C born in 2013 lives with his Mother and spends time with his Father.
Hair Follicle Testing
13.The Mother shall submit to hair strand testing for alcohol by providing a minimum three centimetre (3cm) hair sample to an accredited testing lab (testing lab) on a day between 15 September 2021 and 30 September 2021 inclusive and in accordance with the testing lab's requirements.
14.The report of the results of the hair strand testing shall be provided directly by the testing lab to the Independent Children’s Lawyer and copied to the other party.
15.The Mother shall authorise the testing lab to provide to the Independent Children's Lawyer documents and information requested by the Independent Children's Lawyer relating to the Mother's hair strand testing.
A. The interim hearing did not proceed today for the following reasons:
•The Independent Children’s Lawyer (“ICL”) filed a Notice of Address for Service on 9 July 2021;
•There are a number of subpoenas sought to be issued by the Respondent Father and ICL which have not been issued yet as a result of the current COVID-19 lockdown and are imperative to assist the court in making any further orders;
•The Respondent Father who is a Self-represented litigant has not been able to access the Court to inspect material produced by the New South Wales
•Police (“NSW Police”) and the Department of Communities and Justice (“DCJ”) pursuant to s.69ZW of the Family Law Act 1975 (Cth) (“the Act”);
•The Respondent Father has not had the opportunity to file any material in response to the Applicant Mother’s most recent affidavit material, filed the day prior to today’s hearing.
B.The solicitor for the Mother has formally requested that the matter be given a re-listing within the next six (6) weeks, however the Court provided the parties with the first available date being 20 October 2021.
C.Such a date was given by the Court noting that there are current interim orders in place dated 1 June 2021 and taking into account the comments made by the Family Consultant in the Child Inclusive Memorandum dated 8 July 2021.
D.Both parties raise serious allegations against the other and because of this, the Independent Children’s Lawyer submitted to the Court that it may be appropriate to issue a s.91B Order
E.Orders 16, 17 and 18 herein are made by consent of all parties.
F.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
G.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
(as per the original)
As noted, appropriately in my view, no party has questioned the appropriateness of the orders made by Senior Registrar Hayward on 22 July 2020 other than in respect to the issue of timing of the hearing.
CONSIDERATION
At this point I note, in respect to the orders, the following:
The Senior Registrar’s direction for the parties to file a single consolidated Affidavit is absolutely essential for the orderly and logical consideration of this matter. At the commencement of this hearing I spent some time questioning the parties as to precisely what material they were seeking to rely upon in respect to their respective cases because it was unclear.
In the context where both parties have made very serious allegations against the other it was entirely appropriate for the Senior Registrar to request the Department to intervene in these proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”). To facilitate the Department’s consideration of that request the Senior Registrar also, appropriately, gave leave for a representative of the Department to inspect relevant documents produced pursuant to subpoenas. Clearly, for that to occur, particularly in the context of the current COVID-19 pandemic, would take some time.
Neither party disputed the appropriateness of the Senior Registrar’s order for the Mother to undertake hair follicle testing. From the Father’s perspective he contended that such testing was necessary to reassure himself and the Court that the Mother is remaining abstinent from alcohol. From the Mother’s perspective she contends that such test will establish that she has not and does not have an alcohol abuse disorder. While there was no formal evidence presented to the Court all parties conceded that such a test could be arranged at relatively short notice. Nonetheless, it could reasonably be expected that the parties would wish to consider presenting additional evidence in respect to the outcome of the test as well as to tailor their submissions to the Court in light of the test results.
The Senior Registrar specifically acknowledged the desire of the Mother for her substantive application to be heard within 6 weeks of 22 July 2021. That is, the business day prior to 2 September 2021.
Despite acknowledging that desire on the part of the Mother, the Senior Registrar noted that “the Court provided the parties with the first available date being 20 October 2021” (emphasis added).
It is clear that the situation of urgency that gave rise to the Mother’s substantive Application filed on 26 May 2021 in which the Mother had sought a recovery order for the children had been at least partially addressed by the parenting orders made on 1 June 2021. This was in circumstances where, on 22 July 2021 there was no suggestion that, in terms of time, the Father had failed to comply with those orders. In other words, the children were spending time with each parent in accordance with those orders made on 1 June 2021.
It is significant that the orders made on 1 June 2021 were made either with the consent of the parties or, where not made by consent, determined in favour of the Mother.
Moreover, showing the extent of knowledge of the relevant documents in this matter, the Senior Registrar noted that the orders made on 1 June 2021 had been informed by “comments made by the Family Consultant in the Child Inclusive Memorandum dated 8 July 2021”. The purpose of those reports is in part, as the name suggests, to provide a means whereby the Court is able to ascertain the views of the children.
The views of B were most relevantly referred to at paragraphs 27 through to 30 of the Memorandum dated 8 July 2021 as follows:
B said that it is better now when he is seeing “Mum”, because they do more activities with her. He said that they used to be stuck at home and that she would never take them out and also did not take him and his brother to soccer games, but now she does.
B said that he wants things to stay the same (in terms of the arrangements) and that he wants the “rules” to continue, whereby Ms Moxey cannot drink alcohol in front of him and C, that she is not allowed to hit them, and that B is allowed unlimited access to his phone. He said that he wants to be able to contact Mr Keirn, in case Ms Moxey hits him (B).
B said that his mother used to get so angry because she was drunk. He said that when his father is angry, he shouts a bit and that B and C may get sent to their room.
When asked if B enjoys spending time with his mother, he said that “the rules say ‘go’, so I go”. He later added that he liked spending Saturdays with his mother from 8.00am to 5..00pm (as part of the build-up to the current time every second weekend), and that he would like this time (without C) to be reinstated, in addition to him spending every second weekend with her.
The views of C are most relevantly referred to in the Memorandum at paragraphs 31 through to 33 and also 36 as follows:
C (age 8 years, 1 month) was assessed via video call (while in his mother’s home). He spoke about his activities during the school holidays and said that he and his mother had riding their bikes.
Regarding his parenting arrangements, C said that he spends two more days with “Mum” and that B spends more time with “Dad”. C said that he is unsure why this is so. When asked if he is happy with these arrangements, C said that he would maybe like more time with Mr Keirn.
C said that his mother used to go “a bit crazy” because she was drunk. He said that things are better now, and that he is not worried about this happening again, but maybe “a teeny bit” worried.
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The Family Consultant asked if he has any worries; he said that he does not have worries at his father’s home, only with his mother, in case she goes “a bit crazy”.
Having regard to those views expressed by the children, together with the additional information she refers to in her report, the family consultant recommended as follows:
46.It may be in the children’s interests if there can be continued restrictions about physical punishment and alcohol use, and ensuring access to a phone, as this will provide some reassurance to the children.
47.At this stage, it is difficult to envisage the children, particularly B, being comfortable with the arrangements proposed by Ms Moxey. The children gave the impression of being comfortable with their time in their father’s home and as drawing on him for support. It may be better if the current arrangements remain in place for a while, such as three months or so, with some gradual adjustments so that the boys’ arrangements are contiguous.
48.B seemed to indicate that he would like some one-to-one time with his mother, now that he does not see her as being abusive to him. It is possible that he is starting to miss his mother, and also feeling jealous of the one-to-one attention that C now has, due to the separate arrangements. However, it is may still be better for the children to have similar arrangements and for one-to-one time to be built in as part of those arrangements (for example, while one child is doing an activity).
(emphasis added)
Even if the recommended period of three months is taken to be literally and not approximate, that recommendation contemplated a circumstance where the parenting orders that were in place as at 8 July 2021 would remain in place until 8 October 2021. Clearly, the first available date the Court was able to give the parties, being 20 October 2021, less than 3 weeks outside that recommended timeframe, was not unreasonable.
I have considered the submissions of all parties but, in dismissing the Mother’s application, I respectfully agree with and adopt, as part of these reasons, the helpful submissions made by the ICL the substance of which I set out below.
While each case is to be considered on its individual merits, it is appropriate that the Court also has regard to the impact on the orderly allocation of hearing dates for matters having regard to the resources of the Court that are available to not only the litigants in a particular matter but other litigants before the Court. In that context, the “main purpose” of the Rules as set out in r 1.04 as being to “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case” (emphasis added).
In applying similar principles, in considering the “overarching purpose” of the Federal Court of Australia Act 1976 (Cth) and specifically, the principles set out in ss 37M and 37N of the Act, in Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223 at [54], Tracey J held that:
One element of the overarching purpose is “the efficient use of the judicial and administrative resources available for the purposes of the Court”. Another is “the efficient disposal of the Court’s overall caseload”.
If review applications such as this became commonplace they would, in the words of the ICL “pretty much destroy the system” because they would distort the orderly and considered allocation of hearing dates having regard to the resources of the Court. Having regard to those resources the Senior Registrar made it clear to the parties that the first date available for the matter to be heard was 20 October 2021. This issue is particularly significant at this point in our country’s history where the Court is dealing with the demands of the COVID-19 pandemic and the consequent social and economic impact it has had on individuals and families and consequent workload of the Court.
As noted by the ICL, the date was allocated by a Senior Registrar who had knowledge of required timeframes, in terms of the time it takes to issue subpoenas, for an entity that is subpoenaed to produce the documents on subpoena, the documents to be inspected, and relevant affidavit material and submissions prepared in the context of that information.
By way of example, the ICL noted that, in this case, there has been a specific request for the Department to intervene pursuant to s 91B of the Act. This is in circumstances where there is a current investigation being conducted by the Department, and that investigation has not yet been completed, and it is unlikely that the Department will determine whether it accedes to the request to intervene, until such time as it has completed its own investigation of the matters which have been referred to it, concerning the children in this case. In summary, it was contended that it was entirely appropriate for the Senior Registrar to provide for a period of time to maximise the prospect of that investigation being completed and, if considered appropriate, for the request to be acted upon.
The ICL noted that the Court has a responsibility when allocating dates to make an assessment of priority as against other matters and, noted, that the Court is required to balance allocation of dates with other matters with equally competing priorities.
I also agree with the submission of the ICL that the issues in this case are not clear. While documents produced pursuant to subpoena, which today, have not been able to be inspected by the Father, include notes made by an investigating police officer who expressed doubt concerning the veracity of B’s report that he had been assaulted by his Mother. The Police Officer described elements of B’ account being given in a rote and rehearsed manner and noted that is was given in the context where there is a background of family law disputation between B’ parents. Specifically, the inference is that B had been coached by the Father to make the allegations.
The ICL notes that while the Court will be required to consider that evidence above, the Court may also have reference to the children’s reports expressing concern about the Mother’s conduct. Those reports include those set out in the Child Inclusive Memorandum to which I have earlier referred. It was noted that the Family Consultant spoke to C at a time when he was at his Mother’s home and the Court might find, it was submitted that, in those circumstances, the potential for him to be pressured or coached by his Father would be diminished. The ICL submitted, and I respectfully agree, that the Court cannot lightly dismiss each of the children’s references to the Mother drinking excessively on occasions, and engaging in what could be described as dysregulated conduct. It was further submitted that the Court could not ignore the fact that each child said they felt comfortable in spending time in the Father’s home but each had some concerns in spending time in the Mother’s home.
The reverse side of the coin, in terms of risk, which again was observed by the ICL, was the need for determination of the issue as to whether the mother does in fact have an alcohol abuse disorder. Specifically, it was contended that if the Father’s allegations that the Mother’s conduct has been impacted on occasions when she has been inebriated as result of binge drinking, is correct, then the children are at risk in the Mother’s home, not only because of emotional distress and consequent psychological harm but also, potentially, physical harm.
It was submitted that the task of attempting to resolve the parties’ competing contentions and the evidence upon which they intend to rely to support those contentions is not assisted by accelerating this matter beyond that which will permit the orderly and considered preparation and presentation of both parties’ cases. Again, I respectfully agree with that submission.
In the circumstances of this case, as I have indicated, the Senior Registrar’s direction to the parties as to the steps they are required to take to ensure that the issues in this case are properly researched, collated, and presented are, in my view exemplary. To ensure those tasks are undertaken, a Senior Registrar has allocated a date for the parties to report back to her as to the steps they have taken on 14 October 2021. That is also, in my opinion, sound case management practice. While, the Senior Registrar, herself, acknowledges that it would be desirable if it had been possible to allocate an earlier date, such a date, had it been available, could not, in any event, in my opinion, have been much earlier in time having regard to the tasks that the parties are required to undertake pursuant to the sensible and sound trial directions made by the Senior Registrar.
There was also, with respect, substance in the submission of the ICL that, while the Mother is to be commended for a period of abstinence from alcohol in the period subsequent to 5 May of this year, the Court would have a greater comfort in reaching the conclusion that the children were not at risk in the Mother’s care as result of an alcohol abuse disorder if that period of abstinence is a slightly longer period before the Mother undergoes a hair follicle test. The allocation of the hearing date on 20 October 2021 enables that additional period of time to elapse.
The ICL also referred to the fact that the directions issued by the Senior Registrar provide for the issuing of additional subpoenas including, significantly, to the children’s school in circumstances where it is contended the Father has been advised by the children’s school counsellor and also the school principal that both children have made reports concerning the Mother appearing to be intoxicated on occasions and also excessively disciplining them including by hitting them on those occasions. The ICL noted that, in the context of the current health restrictions, “the issuing of subpoenas in the current environment is actually quite fraught.” This is in terms of the Court having time to process those subpoenas in the context of reduced staff working in the registry and in terms of those agencies which receive the subpoenas to physically collate and/or electronically collate the documents to transmit them to the Court. This, in my view, is also a reason why the time allocated by the Senior Registrar for preparation of this matter for hearing was entirely appropriate.
In terms of the Mother’s claim for urgency, the ICL noted the Mother’s concern about the Father potentially involving the children in the parental dispute including by reference to an email sent by the Father to the Mother on 11 June 2020. That email is set out on page 125 of the Mother’s electronic court book including her tender bundle dated 11 August 2021, and relevantly reads as follows:
On Fri, 11 Jun. 2021, 6:25 am Mr Keirn, <…> wrote:
I will show B this email and get him to respond.
He was not crying and asked you to drop his phone off back to him last night, but you said you could not do it.
B also said you sounded like you had been drinking. I am very concerned for C’s wellbeing with you drinking whilst caring for the children. Can B talk to C to make sure that he is ok ?
On 10 Jun 2021, at 9:48 pm, <…> wrote:
I do not understand why B was crying just now on the phone from your place saying he needs to catch a ferry to the City on his own tomorrow morning and he needs his phone which he left in my car and that he needs to leave at 6.30 am tomorrow. You or B can collect his phone from my place in the morning. I will be leaving at 8am tomorrow, well after you need to leave, so should not be a problem.
B has a student free day tomorrow, why does B need to leave at 6.30 am from your place tomorrow, I hope he is not travelling on his own? B can come to my place in the morning and I can take him to the CBD after 8am if needed and he can travel with his phone if you cannot drive to my place to collect the phone before 8am.
Please do not give him hard time about leaving his phone in my car. He had to phone you to find out where you were after 8 pm today and must have left the phone on the car seat by accident. We waited for 25 min for you in the car.
Please let me know what time you are collecting the phone or I can drop it at your office tomorrow.
It was submitted, and I agree, that the mother would have some concerns about that email however, it was submitted by the ICL that the email is also open to other interpretations that will need to be considered by the Court. It was submitted that, save in respect to the sending of that email, it has not been suggested that that the Father has acted contrary to the orders made on 1 June 2021 including in respect to refraining from making disparaging comments concerning the Mother.
In response to that submission, it may well be the case that the Mother wishes to present some additional material that the Father has acted contrary to the spirit and intent of the orders made on 1 June 2021 in respect to her contention that he has inappropriately involved the children in the parental dispute and making comments disparaging of the Mother including, potentially, for the purpose of alienating them from the Mother. On balance, however, even if the Mother’s construction of the email of 11 June 2021 is to be accepted, it does not create a situation of such urgency that it justifies departing from the orderly program of collection and presentation of the necessary evidence required by the Court to consider the serious allegations that the parties respectively make against each other.
Accordingly, for all these reasons I dismiss the Mother’s Application in a Case filed on 27 July 2021.
In circumstances where the Mother has been wholly unsuccessful in this application, I will provide a period of seven days for the ICL to provide written submissions on costs of no more than two pages to my Associate and to the other parties. I do not give a similar liberty to the Father as he is self-represented. I will similarly provide for a period of an additional seven days for the Mother to respond by a submission of no more than two pages.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 24 August 2021
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