Mullen and Acken - [2011] FamCA 359

FAMILY COURT OF AUSTRALIA

MULLEN & ACKEN

[2011] FamCA 359

FAMILY LAW – CHILDREN – Transfer of proceedings from the Federal Magistrates Court – Matter set down for first day hearing – Mother to have telephone communication with the children.

APPLICANT:

Ms Mullen

RESPONDENT:

Mr Acken

INDEPENDENT CHILDREN’S LAWYER:

Mr D Piekarski

FILE NUMBER:

MLC

10068

2010

DATE DELIVERED:

5 May 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr T Mulvany

SOLICITOR FOR THE RESPONDENT:

T.J. Mulvany & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.This matter be accepted into my docket and be set down for hearing before me as a first day matter on Friday 1 July 2011 at 10.00 am, estimated to take not less than 2-3 hours.
2.Until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Sikiotis or, in her absence, notified to them by my Associate for the return of subpoenae.
3.I grant leave to the independent children’s lawyer to make an oral application for a variation of parenting orders to enable the mother to have such telephone communication with the children as the father is agreeable to and is supported by the independent children’s lawyer.
4.Until further order, the mother be entitled to communicate with the children S born … September 1998, E born … March 2000 and T born … December 2001 by telephone each Wednesday and Sunday between the hours of 6.30 pm and 7.30 pm at which time the mother place a call to the children’s residence and the father do all acts and things necessary to ensure that the telephone line is kept free from all other calls and the children are in the house and available to receive the mother’s call.
5.For the purpose of facilitating the telephone communication the father afford the children as much privacy as is possible when speaking to the mother.
6.Both parties be at liberty to record the calls in their entirety. In the event that the calls are taped the tapes be preserved and not deleted or disposed of until further of the Court and any recording is to be unbeknownst to the children.
7.In anticipation of the listing on 1 July 2011:-
a) no party be entitled without prior leave of the Court to file any further documents in the proceedings;
b) AND IT IS REQUESTED that the Director of Child Dispute Services for this Registry of the Court advise of the availability of a family consultant to conduct a Child and Parent Issues Assessment or other involvement in relation to this matter with a view to the future management of this matter.
8.The reasons for judgment this day be transcribed and when settled copies be made available to the parties.
9.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.

AND IT IS NOTED BY THE COURT that the wife has advised the Court and the other parties to the proceedings that pending further written notice by her to them to the contrary, she will not avail herself of the time with the children provided for in paragraph 2 of the Order made by Federal Magistrate Connolly on 5 May 2011 (for supervised time spent).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10068 of 2010

Ms Mullen

Applicant

And

Mr Acken

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

This matter comes before me for directions consequent upon it being transferred into this Court from the Federal Magistrates Court by Federal Magistrate Connelly.
The proceedings are for alteration of property interests as between the husband and the wife and for parenting orders about their daughters S, who is 12 years of age, E, who is 11 years old and T who is nine years old. His Honour had the matter before him for final hearing earlier this week but vacated the final hearing and then made interim parenting orders. His Honour’s reasons for decision are on the file but I have not had an opportunity to read them. I merely want to provide the parties, including the independent children’s lawyer, with some certainty about when the matter will be listed in this Court consequent on the transfer and to avoid delay with allocation of reportable counselling.
I have taken a brief history from counsel for the husband, the independent children’s lawyer and from the wife, whom I observed to show forbearance by limiting her interjections.
The mother is a 43 year old qualified in the education field. The father is 44 years old and employed in the mass media.
Prior to separation, the parents and children lived in Melbourne. When the parents separated on 3 March 2009 the children remained in the care of the mother. The children resided with the mother post-separation until 30 November 2010 when she unilaterally relocated the children to Town 1 where they commenced school. Shortly thereafter, the father made application for the immediate return of the children to Melbourne. On 20 December 2010 orders were made appointing an independent children’s lawyer. It was also ordered that an assessment be conducted by Ms M, who is a psychologist. The report of that assessment has been filed in an affidavit sworn on 4 May 2011. The wife takes issue with much of the contents of Ms M’s report both relation to factual matters and in relation to the expert opinion expressed.
On 20 December 2010 it was also ordered that the children’s time during the balance of the long summer school vacation be shared between the parents in some proportion that I am not aware of. It is suffice to say that the wife resolved to stay in Town 1 where she has family and the husband remained in Melbourne. The children travelled between the two cities.
On 31 January 2011 further orders were entered into. They appear to be by consent. I understand the wife takes issue with that and says that she did not consent. The 31 January order provided that the wife would have alternate weekend time with the children, but they reside primarily in the care of the father. An order was made for the parties to attend upon an appropriately qualified person nominated by the independent children’s lawyer for psychiatric assessment. The husband has done so and the wife has not.
The wife takes issue with the need for the order to have a psychiatric assessment. There is no application by the husband or the independent children’s lawyer to enforce the order about the wife’s attendance for psychiatric assessment. That is not surprising. Psychiatric assessments are difficult enough, but doubt must attend the probative value of an assessment of an unwilling participant.
In discussion with the wife, I indicated that I was not inclined to force her into a psychiatric assessment. However, the consequence is that she will not be able to rely on any favourable indications which could have emanated from an assessment. Therefore, if I ultimately conclude that the wife has acted or presents in a way which is not in the best interests of the girls (which she says is definitely not the case), I will not be able take into account that such conduct could be ameliorated by treatment or medication or increased insight on her part. The wife takes the view that no psychiatric assessment is necessary because she has no mental illness or instability. She is not prepared to submit to an assessment for the purpose of proving that she is correct. She is concerned that the nominated psychiatrist was provided with the family report of Ms M which she says is inaccurate and wrong. She has prepared a “rebuttal” to the Ms M report but apparently that was not sent to the nominated psychiatrist in time for the psychiatrist’s assessment of the husband and the wife would not attend upon a psychiatrist who, she claims, now has an unbalanced and inaccurate appreciation of the relevant history.
The order for the psychiatric assessment of the wife stands. She can go or not go. Ultimately each parent will be judged on his or her conduct and on the evidence, not on what evidence may have been brought into existence had the wife obeyed the order.
The wife gave me some impression that she may consider being assessed by a psychiatrist of her choosing. However, that would fall short of compliance with the existing order for which a psychiatrist was already selected and has already assessed the husband. It is also far preferable that both parties be assessed by the one expert. In any event, just as no one sought to enforce the order for the psychiatric assessment of the wife, no one sought to vary its terms. I note that for the duration of the matter being listed before me the wife’s parents have been in court as has her brother.
The effect of the orders of Connelly FM is to suspend all spend time orders and communication orders between the mother and the children. In general discussion, I commented to Mr Mulvany for the husband that that order necessarily precludes the children from talking to the mother even by telephone, a medium for which there are certain safeguards that can be put in place. The matter was stood down for approximately one hour. During that time Mr Mulvany was able to obtain instructions and when the matter resumed, he stated that the husband was agreeable to a proposal by the independent children’s lawyer that there be some telephone communication between the mother and the girls and specified between 6.30 and 7.30 pm on Wednesdays and Sundays. The communication is to be subject to the entitlement of both parents to tape the conversations, albeit that the children are not under any circumstances to know that the conversations are being taped.
The mother was initially under the misapprehension that I would consider altering the orders of Connolly FM based on my own assessment of all of the relevant evidence. However, that is not the nature of the mention today. It is open to the wife to file an appeal against the determination of Connolly FM, which she indicated she would do, as well as against any determination which I make. Otherwise, I am not aware of interim applications which were not dealt with in the decision of Connolly FM. There is no change of circumstances given that his Honour’s reasons were only delivered this morning.
In considering an alteration of the order suspending telephone communication, I am not substituting my own assessment of all of the evidence for that already undertaken by Connolly FM. Rather, I am considering altering the order if all parties agree that I should do so, or at the very least have no opposition to it. The wife characterises the arrangement for supervised time with the children as “abusive”. She says that she will not avail herself of it. Therefore, there will not be any face to face time between herself and the children for whom she was the primary carer until December last year. Apropos of telephone communication, the wife seeks much more extensive telephone communication than twice a week and says that the children must be free to contact her whenever they wish. She submits that is the only outcome which would be consistent with the best interests of the children. That may ultimately be correct, but I am unable to make any such determination today.
I cannot appreciate all of the facts of this case which, in not even six months have come to comprise three court volumes of documents. Whilst the number of documents filed is only 28, I estimate that there are approximately 1,800 to 2,000 pages of material. It is not as simple as the wife would have it, in that I cannot exercise my discretion judicially by simply reading the Ms M report and the wife’s “rebuttal”, which I gather is not a short document in any event, and prefer one over the other. The determination of parenting matters for these children has to be more carefully undertaken with due consideration to a number of primary and additional factors in relation to all of the evidence of the case rather than a consideration of just two documents. The evidence of the report writer, Ms M, should be tested in cross examination. The evidence of the wife (and husband) must also be tested by an opportunity to call other conflicting evidence and, usually, by cross examination as well. There is a legislative pathway that must be followed when parenting orders are sought and it must be followed even in circumstances where the evidence conflicts and it is not possible to make findings of fact.
I gather that in the meantime, the wife will take the time that is offered by the husband and the independent children’s lawyer by way of regular telephone communication. I am satisfied that is an outcome which is consistent with the best interests of the children. I have regard to the fact that it finds favour with two out of three parties and the wife says she will avail herself of it. I have regard to the fact that, if I do not make the order sought, these girls will have no contact at all with their mother or, presumably, their maternal family who are sitting in court today.
It is the wife’s responsibility to ring the children. It is the husband’s responsibility to make sure they are at home to take the call from the mother.
I note that Connelly FM has also ordered that the mother can spend time with the children for three hours each alternate Sunday, commencing this weekend providing it is supervised by the nominated agency. The mother says she will not avail herself of that time, and so I have made a notation in the orders to that effect. That situation can be reversed by the wife providing written notice to the other parties at a reasonable time of her intention to commence to avail herself of the orders.
I note that the orders made by Connelly FM also require the independent children’s lawyer to explain the changed arrangements to the children. The independent children’s lawyer should take into account when doing so that the children should not have their expectations (about seeing their mother) raised unduly in light of her statement that she will not exercise her rights to see the children on a supervised basis.
Finally, I have been unable to ascertain from Child Dispute Services what services can be offered to this family prior to the hearing date which I have allocated on 1 July 2011. That is a pity because I was endeavouring to avoid delay in that regard. It is desirable for there to be social science input, other than that of Ms M, prior to 1 July 2011, particularly as the girls may not be seeing their mother regularly or at all into the future.
In the event that there can be a children and parents issues assessment conducted in the next few weeks, the parties can expect to be contacted by my chambers with details of a mention to enable orders to be made to that effect. They can be heard on the topic then. If there is no communication about a children and issues assessment before the hearing on 1 July 2011, that is because there is no availability within the Court to allow it to happen.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 May 2011.

Associate:

Date: 19 May 2011