Muir & Rodelo
[2022] FedCFamC1F 1023
Federal Circuit and Family Court of Australia
(DIVISION 1)
Muir & Rodelo [2022] FedCFamC1F 1023
File number: SYC 925 of 2019 Judgment of: HENDERSON J Date of judgment: 15 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Re-open – Where the mother and Independent Children’s Lawyer (“ICL”) sought leave to re-open the proceedings – Where police subpoena material highlight concerning allegations made against the father by his current partner – Leave granted.
FAMILY LAW – CHILDREN – Best interests – Family violence – Risk – With whom a child spends time with – Where the mother and ICL sought an order that the children spend no time with the father in light of recent police subpoena material – Where the father resisted this order – Where the recent material highlights serious concerns about the conduct of the father – Where the father poses an unacceptable risk to the children – Orders made for the children to spend no time with the father and he ensure the return of the children to the mother.
FAMILY LAW – EVIDENCE – Expert evidence – Where the mother sought the father be responsible for costs relating to an updating expert report – Where the father and his conduct has caused a need for an updated expert report – Order made for an expert report and associated and consequential costs to be paid for solely by the father.
FAMILY LAW – INJUNCTION – Personal protection – Where the mother sought various injunctions restraining the father – Where father poses an unacceptable risk – Where the father has previously defied orders of the Court resulting in various recovery applications – Orders made as sought by the mother.
Legislation: Family Law Act 1975 (Cth) ss 68B, 102NA. Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 15 July 2022 Place: Sydney Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Holmes Donnelly and Co Solicitors Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Beswick Lynch Lawyers Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 925 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUIR
Applicant
AND: MR RODELO
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HENDERSON J
DATE OF ORDER:
15 JULY 2022
THE COURT ORDERS THAT:
1.That leave be granted to re-open the evidence in these proceedings.
2.That leave be granted to the Independent Children’s Lawyer to provide to Dr B a copy of:
(a)Exhibit M14;
(b)The Mother’s affidavit filed on 15 July 2022, and
(c)The Father’s affidavit filed on 6 July 2022
(d)Any further affidavits or material filed.
and that Dr B be requested:
(e)To consider the above material and indicate whether he wishes to re-interview either of the parties, Ms D and/or the children, and
(f)To prepare a brief update report in relation to any matters he considers relevant to the welfare of the children arising from the above material.
3.In the event that Dr B indicates he wishes to conduct any further interviews then:
(a)The parties will each attend upon Dr B if requested to do so;
(b)The Father will use his best endeavours to ensure that Ms D attends upon Dr B if requested to do so, and
(c)The Mother will ensure that the children attend upon Dr B if requested to do so.
4.The father bear the cost of Dr B’s consideration of the material identified in Order 2, any further interviews of the parties, Ms D or the children, and preparation of his update report.
5.The father bear the cost of Dr B’s attendance at Court for the purposes of further cross-examination.
6.The matter be listed for mention at 9:30am on 18 August 2022 for further trial directions.
7.That the final hearing be adjourned part heard to 3 days commencing at 10am on 28 September 2022.
8.That the ICL and Mother’s lawyers have leave to issue a subpoena to Ms D for her personal attendance to give evidence at the adjourned part heard hearing if required.
9.Pending further order, all interim orders providing for the children to spend time and/or communicate with the Father are suspended.
10.That the ICL forthwith request Ms D to deliver the children to the Mother at Level 2 of the Sydney Registry of the Federal Circuit & Family Court of Australia by no later than 4:30pm on 15 July 2022.
11.That pursuant to section 68B of the Family Law Act 1975 the Father be, and hereby is, restrained by injunction whether by himself, his servants or agents from:
(a)Removing, taking possession or attempting to remove or take possession, custody or control of the children (or any of them) and/or from causing the children to be removed from the mother’s care;
(b)Permitting, facilitating and/or encouraging the children to enter any motor vehicle in which owns or is present and/or any home or other premises where he may from time to time reside or stay overnight;
(c)Attending upon or coming within 50 metres of the Mother’s home at any time;
(d)Attending upon or coming within 50 metres of the children’s school, pre-school or any location at which the children are attending any extra-curricular activity;
(e)Contacting the children or any of them through any means (including via any social media platform); and
(f)Coming within 50 metres of the children or any of them.
12.The above orders are made for the personal protection of the mother and the children.
13.The Order with respect to section 68B of the Family Law Act 1975 brings in to action the terms of section 68C which grant the police a power of arrest for the personal protection of the person if a police officer believes on reasonable grounds that the person against whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the protected person, or harassing, molesting or stalking that person and in those circumstances the police officer may arrest the Respondent without warrant.
14.The Mother is at liberty to provide a sealed copy of these Orders to the schools in which the children are currently enrolled, all places of extracurricular activities they attend from time to time and the NSW Police.
15.Liberty be granted to all parties to approach the Court in Chambers to have the matter relisted on short notice.
16.I declare pursuant to section 102NA(1) of the Family Law Amendment (Family Violence and Cross Examination of Parties) Act 2018 that either party is prohibited from personally cross-examining the other in these proceedings having regard to allegations raised by both parties.
17.The father and/or mother is entitled, in terms of conducting a final hearing, to obtain legal representation via the Legal Aid Commission of New South Wales to represent them in the final trial.
18.I DIRECT the father and/or mother to contact the Legal Aid NSW Family Advocacy & Support Service for the purpose of completing an application to the Cross Examination Scheme.
19.UPON NOTING that the requirements of s102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after the date of these Orders.
20.And further noting that the parties have each been advised by the Court:
(a)that pursuant to those requirements, neither party may cross-examine the other party personally;
(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)that a copy of these orders will be provided by the Court to the relevant authority in New South Wales, which administers the said scheme.
21.Pursuant to Section 67U of the Family Law Act 1975 (‘the Act’), a Recovery Order lay in the Registry to issue forthwith if the children are not brought to the Sydney Registry by 4:30pm on 15 July 2022 authorising and directing the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to take possession of the said children of the relationship, X born 2009, Y born 2011 and Z born 2015 and to deliver the said children to the Mother forthwith, she being the person with whom the children live, pursuant to the Orders of this Honourable Court made on 15 July 2022.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Muir & Rodelo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J:
This is an application by the Independent Children’s Lawyer (“ICL”) and applicant mother arising out of subpoenaed material produced by the police concerning the father’s behaviour and that of his partner, Ms D, pre- and post- the adjourned hearing, which concluded on 13 May 2022, having commenced on 9 May 2022. The matter was listed today for closing submissions, which cannot occur.
The subpoenaed material from the New South Wales Police was marked as an exhibit,[1] and this together with the father’s affidavit of 7 July 2022, have resulted in the ICL and the mother seeking the following:
(1)Re-open the proceedings and I have granted leave to do this;
(2)Have Dr B provided with the material filed thus far and the mother’s affidavit filed 15 July 2022 and, if necessary, re-interview the mother, father, Ms D, the father’s partner, and, if necessary, the children and prepare a report;
(3)A suspension of all orders for the father to communicate with and spend time with his children;
(4)That Ms D, whom is currently caring for the children at present, it being school holidays, present the children to the Registry today to be collected by their mother;
(5)That I issue a section 68B personal injunctive order to protect the children and the mother from the father, including a warrant for arrest if it is breached; and
(6)Other procedural orders about concluding the matter.
[1] Exhibit M14.
As I have said, I have granted leave to re-open these proceedings given what I regard is the explosive material contained in the police records now read post the conclusion of the trial. It is an imperative this evidence is tested, Ms D is examined and Dr B re-engaged and the serious and concerning allegations against the father in the police material and his unstable relationship with Ms D be put to the test before I deliver judgment on the future care arrangements for three young children.
Currently, the father spends three nights a fortnight with the children and a Wednesday afternoon and half school holidays, and they are with him for the holidays at the moment. The ICL proposes that the father’s time be suspended forthwith until this new evidence is tested and the hearing is resumed.
The father objects to this course and asserts he is not and has never been a risk of harm to his children. Mr Livingstone made excellent submissions in the face of great difficulty as a highly regarded legal practitioner in this Court. He submitted that to cut the children off from his care and affection is draconian – and that is correct, it is. I used that word at the hearing. That this could damage their relationship with him and affect them negatively emotionally. If I am against the father on this, in the alternative, the father proposes time for a few hours on a weekend in the absence of Ms D, and he undertakes not to discuss the issues now before the Court with his children.
Now, I disagree that the father poses no risk to the children, given his treatment and behaviour towards their mother, which is echoed in the fresh evidence of his alleged treatment and behaviour towards Ms D found in the police records. The father’s conduct, attitude and behaviour is now squarely raised as a risk to the children, and the ICL submitted that he retaliates against the mother, something he admitted in cross-examination – to his credit, he has admitted this. That he continues to retaliate against the mother and it would appear Ms D and that this bespeaks perhaps a concern for his mental health, and this conduct and his behaviour poses an unacceptable risk of harm to the children whilst in his care.
The mother in her trial affidavit alleged coercive, controlling behaviour, violence towards her, particularly when she was pregnant (and three days before Z’s birth was a particularly difficult incident for the mother), towards her generally during the relationship and post-separation. Dr B was appalled at the father’s many nasty, demeaning and sarcastic messages to the mother when she was raising important issues concerning the care of their children, particularly their elder daughter, who has high anxiety and was showing some concerning self-harming behaviours. This behaviour in the child was something Dr B said he was extremely concerned about in his report and evidence. Dr B said the father has a litigious approach and a combative style, and this was inconsistent with his evidence to Dr B that he had been working on his communication with the mother, he knew it was poor behaviour and things had been better for about the last 18 months. Thus, the father well knew and even conceded his behaviour, attitude and conduct was in the spotlight, as at the conclusion of the trial and said, “I have to do better”.
The father and Ms D presented to the Court and to Dr B as in a stable, mutually supportive relationship with only the usual disagreements all couples have. That that they have suffered an unimaginable loss of a child in early 2022 and had had understandably a rough time but were a committed, stable couple. The mother was supportive of Ms D, and she was happy she was in the children’s lives. The mother said she was a nice person or a lovely person, or words to that effect. Dr B saw Ms D as an important emotional support and resource for the father. These were matters that were important to Dr B in his report and evidence.
The father wrote an apology to the mother on 13 May 2022 after the conclusion of the hearing and I will read it out:
I am writing to apologise how I have reacted, written and behaved since separation.
There is no excuse for some of the messages I have written or the way I have behaved at times.
I want you to know that I am taking responsibility and will continue making changes for the benefit of you and our children.
(As per the original)
This was a most excellent first step. The mother writes back on 16 May 2022:
Hope you had a nice weekend.
I didn’t want to be rude and not reply. So just to say, I appreciate the apology.
Thanks, [Ms Muir].
(As per the original)
That correspondence augurs quite well.
The police notes[2] provide a very different and most concerning alternate view of the relationship of the father and Ms D and the father’s attitude to the mother and, therefore, the sincerity of his apology, his comments of taking responsibility and doing better for the benefit of the children.
[2] Exhibit M14.
In mid-2022, the police were called by Ms D to take a report about historic domestic violence offences involving the father. The concerning notes are as follows.
In mid-2022, there are further notes stating there was an argument between Ms D and the father in mid-2022 about him leaving the home, breaking up as a couple and selling the home. Ms D called the police. Nothing came of that. But that clearly is not a stable relationship or as was presented being mutually supportive of each other. There was an argument about separation.
The evidence from an earlier date in mid-2022 is the really concerning evidence. On that date, Ms D goes to the police and the notes state:
The PINOP [[Ms D]] and DEFENDANT [the father] currently reside at the same co-owned address, sleep in different rooms and have no children together. The PINOP and DEFENDANT have agreed to break up, however, the PINOP believes the DEFENDANT will not leave [the premises].
(As per the original)
Ms D says in early 2020, the father placed his erect penis in her mouth while holding her still. They did not say anything to each other. Later in the day, he apologised.
The second occurrence in mid-2021:
… the PINOP [[Ms D]] and DEFENDANT [the father] were having an argument in the kitchen when the DEFENDANT became frustrated and threw a freshly made espresso shot from an espresso mug onto the PINOPS face causing instant pain. The PINOP immediately had a shower to clean herself up, the DEFENDANT entered the bathroom and told the PINOP that she needs to terminate her pregnancy. The PINOP told the DEFENDANT she intended to call the police about the incident, however, the DEFENDANT pleaded with the PINOP not to as he was in a court proceeding with his ex-wife and was fearful of losing custody of his children. The PINOP phoned her employer from the street to inform them that she was not feeling well and needed the day off. The DEFENDANT was waiting downstairs in his car fearful the police may come. After the PINOP hung up the phone, the DEFENDANT drove over to the PINOP and questioned her about the call. After the PINOP assured the DEFENDANT she had not called the police, he drove to work.
(As per the original)
The third occurrence in early 2022: Ms D and the father had an argument about how the father was treating her after the miscarriage of their child. During the argument – it is alleged – the father grabbed hold of her phone, held it out of reach, stopping her from calling ‘000’. In an attempt to get her phone back, she pinched his arms. He sent a message from her phone from his, “I’m sorry I hit you on the head tonight,” and she believes this to be a tactic which he uses to manipulate her.
The fourth occurrence later, in early 2022: the father and Ms D were at their holiday home in C Town. During consensual sexual intercourse, the father struck her to the right side of the face with an open hand, causing pain.
The fifth occurrence a short time later,: the father and Ms D had an argument about her having to be involved in the court case – the very court case we are in now. He came closer to her and she was pushed by his body, causing her to fall over the lounge room couch.
The sixth occurrence some time later, in 2022:[3] after a verbal argument, Ms D threatened to call the police. The father is alleged to have said words to the effect, “If you call the police, I’ll kill you.” She did not call the police and reported she holds concerns for her safety.
[3] This incident was after the hearing was adjourned. The previous incidences were prior to the hearing.
These are very concerning allegations, indeed. The father was arrested at some point about these allegations. The arrest did not proceed because Ms D did not sign her statement. Further on a date in mid-2022 she recanted, saying this:
I spoke with you yesterday and made a statement that I wish to amend. Firstly, I have never been raped. I have never had non consensual intercourse. I have been going through severe grief and anxiety since losing our daughter [earlier] this year. I feel that my depiction of events that I described may be skewed by this. I have hit [Mr Rodelo] once in the head with a slap [in early 2022]. I am not an innocent in this relationship. The sexual events I described were consensual, I did not say no or push him away. I was completely compliant. I cannot be totally sure that the facts I gave you were even accurate? I do not fear for my life. I have been under a lot of stress and naively thought I could have a temporary AVO put in place for my mental well-being. I was under too much stress when I rang police yesterday and I do not wish for [Mr Rodelo] to be charged for any of these offences. I simply wanted peace to be able to move out of the apartment and sell the property. I would like to change my statement. …
(As per the original)
In mid-2022, some three weeks after the father wrote that nice apology to the mother, he contacted the police to report two historic assaults by the mother on him in 2018 and 2019, being scratched on the arm and being hurt with a food processor. The mother was contacted about this in mid-2022 to see if she wanted to make a statement. Initially, she said she would, but she changed her mind. The police write in their notes of mid-2022:
… Police have made the decision to reject the claim of assault for the following reasons: There is no evidence to corroborate the Victim’s [the father] version of how he sustained his injuries. The Victim had ample opportunity to report the assaults since they occurred where he made several other reports in the time frame between then and now. The Victim mentioned to Police that his main motivation to report the assaults aid in an appeal to a recent Family Law court motion that was filed in the POI’s [the mother] favour for sole custody of their children. Finally, an expert certificate in an earlier matter was shown to prove the Victim caused an injury to himself (stab wounds to his stomach) where he reported the POI as having committed an assault. The charges were later dropped after serious review and consideration of this. … The Victim is unfavourable and is believed to have malicious motivations. For the reasons set out above Police have rejected these reports. …
(As per the original)
The father’s apology to the mother is inconsistent with his actions in mid-2022, reporting two historical assaults to the police. This conduct is clearly a continuation by the father of retaliation against the mother, so evident at the hearing and admitted by him. However, the most concerning evidence relates to Ms D and the father and their relationship, and this has raised alarm bells. Ms D’s recant has caused me considerable concern for the following.
Her initial allegations were detailed and specific, as are the mother’s allegations. Recanting, as is well-known, is a feature of a relationship of violence, coercion and control. The father’s alleged behaviour to Ms D echoes the mother’s evidence, holding the mobile phone, threats to avoid police action, pleading not to call the police.
The father has showed a lack of candour to Dr B, to the Court, but astonishingly to his own competent legal team, who were met with this evidence on the very morning of the final day of submissions and, in complete ignorance of this information, had filed on his behalf an affidavit of 8 July 2022, in which none of these concerning events were disclosed. Given the father has said, “I have to do better” and that his prior behaviour was not acceptable – he having accepted this was correct saying so to the mother in his apology – it is of grave concern to the Court impacting on the issue of risk to his children or risk of harm to his children that he continues to say one thing and do another, and is unable to tell the facts when he believes they may not assist his case. This is a serious defect in an adult and particularly one who has the care of children, for I cannot be satisfied he will put their interests above his own if he was pressed to reveal his actual behaviour.
Mr Livingstone said the father has not directly harmed his children, and there is no evidence they have witnessed the alleged poor behaviour between he and Ms D, and the mother had also said in her oral evidence, “I am not so concerned he would harm the children. It is his reaction to me that is the issue.” That is what concerns her. However, direct harm is only one part of risk of harm to children and an unacceptable risk of harm to children in their father’s care. The children are at a significant emotional risk in their father’s care from his retaliatory, litigious and confrontational manner in dealing with their mother and it would appear, yet untested I accept, Ms D.
The father’s need to better or get one over the mother continues unabated despite his apology and saying to her he was moving forward to do better for the children. Additionally, as Ms Shea on behalf of the ICL pointed out, this is an extremely stressful time for the father with clear issues in his unstable relationship with Ms D, the financial pressure he is under and awaiting the outcome of this litigation. His children are at risk from his behaviour and conduct and at this time, I find this to be an unacceptable risk to them. These children are older children. They have an established relationship with their father. An eight week adjournment, which is when the re-hearing is to commence and not seeing him will not in any way diminish or fracture or extinguish their relationship with their father which they have built up over their lives.
I have formed this view that the father poses, at this time, an unacceptable risk of harm to his children if they are in his care unsupervised or unmanaged. He and Ms D need time to deal with their serious issues and unstable relationship. The children and the mother need a break, consistency and stability in their lives. For these reasons, together with the reasons that will follow in relation to the application for a section 68B order as sought, the father’s time with these children will be suspended as the ICL has put forward and agreed to by the mother. I will also make the personal protection order sought.
The father has demonstrated little, if any, capacity, as put to me by Ms Gillies SC for the mother, to comply with Court orders or obey them. He is vengeful and seeks retribution, particularly against the mother at times. The examples of this are these. The father has been charged with and convicted of a breach of an AVO in respect of the mother as he just went ahead and did what he knew he should not do. Two recovery orders or two applications to have children returned to the mother have had to be brought by the mother, when the father well knew he had no right by way of order or agreement to spend time with the children. He put them at risk by not returning them to their mother.
He has breached property injunctions, used the parties’ property at C Town as collateral for the property he and Ms D had bought at Suburb E, did not tell the mother about this, did not ask about it, just went ahead and did what he chose to do. He has made the mortgage go up and down on C Town as he chose. He may well have paid it back, but he certainly has breached the injunctive orders in relation to C Town. In those circumstances, I will make the personal protection order, to which a warrant of arrest will also attach if it is breached. This is also a reason why he is a risk to his children, that is, he does not comply with orders that are best for his children, and I cannot accept any undertaking he chooses to give to the Court.
I will order Ms D to bring the children to the Registry by 4.00 pm. It’s now 3.30 pm. It might be a bit hard. But certainly by no later than 4.30 pm today. I cannot order her to do so but the father can be ordered to ensure this occurs. I will issue a warrant to lie in the Registry to ensure compliance with this order. If this does not happen, unfortunately, these children will have to be arrested to be returned to their mother.
In relation to the payment of Dr B’s additional fees, the father will bear those costs. Had he been transparent with his own lawyers, today’s hearing could have been perhaps avoided and his legal team given time to make a proper approach to the other parties and particularly the ICL and the Court in how to conclude this matter to finality. Dr B’s evidence is crucial. The father’s mendacity has resulted in these draconian orders being made today and the matter not concluding.
I will make a section 102NA order because it appears these parties have spent an inordinate amount of money on legal fees, and this may not be able to be continued to fund private litigation. The father’s conduct, attitude and behaviour toward the mother is unacceptable and he cannot cross-examine her, and it may be that the parties need to give further evidence when the fresh hearing occurs and other evidence is filed. In those circumstances, I make a section 102NA order.
I will give leave to the mother and the ICL to issue a subpoena for the personal attendance of Ms D to give evidence, should that be required at the adjourned hearing, and a warrant will lie in the registry. I do not know if anyone has been able to contact Ms D or she has come into contact with anybody to see if she is able to comply with the order when it is issued to her, and please send it to her as soon as is possible.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 15 July 2022. Associate:
Dated: 19 January 2023
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