MULLINS & LIEN
[2020] FCCA 3176
•27 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MULLINS & LIEN | [2020] FCCA 3176 |
| Catchwords: FAMILY LAW – Application for interim care arrangements for children aged 5 and 6 – allegations of family violence in the parties’ marriage – lack of effective communication between the parties – best interests of the children – matters to be considered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Mazorski v Albright (2007) 37 FamLR 518 |
| Applicant: | MR MULLINS |
| Respondent: | MS LIEN |
| File Number: | ADC 1430 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 9 November 2020 |
| Date of Last Submission: | 9 November 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 27 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | The Law Offices of Elizabeth Temnoff |
| Counsel for the Independent Children’s Lawyer: | Mr Hemsley |
| The Independent Children’s Lawyer: | Legal Services Commission of South Australia |
UPON NOTING THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
That paragraphs 1 and 4 of the orders made on 25 November 2019 do continue.
During the Christmas 2020/2021 school holidays, the children X born 2014 and Y born 2015 (‘the children’) spend time with the parties in a week about arrangement with handovers to be at 4.30pm on Sundays, with the father to have the first week of said holidays commencing on 13 December 2020.
Notwithstanding order (2) hereof, the party who has the children in their care during the 2020/2021 Christmas holidays shall release the children to the other party during their period of time from 11.00am on Wednesday until 11.00am the following day.
For one week of the father’s time pursuant to order (2) hereof, order (3) hereof is suspended such that the father’s time will proceed for one week uninterrupted, such week to be agreed upon by the parties in writing.
The children spend further time with the father as follows:
(a)During all short school holiday periods in 2021:
(i)From 4.30pm on the Tuesday in the first week of the school holidays until 4.30pm on the following Saturday; and
(ii)From 4.30pm on the Thursday in the second week of the school holidays until the commencement of school on the following Monday.
(b)At any further times as shall be agreed in writing between the parties from time to time.
The children spend time with each of the parties during the 2020 Christmas period as follows:
(a)With the father:
(i)from 3.00pm Christmas Eve to 3.00pm Christmas Day.
(b)With the mother:
(i)from 3.00pm Christmas Day to 3.00pm Boxing Day.
The children spend time with each of their parents during the 2021 Easter period as follows:
(a)With the mother:
(i)From 10.00am on Maundy Thursday, 1 April 2021 until 10.00am on Easter Sunday, 4 April 2021.
(b)With the father:
(i)From 10.00am on Easter Sunday, 4 April 2021 until 10.00am on Monday, 5 April 2021.
All handovers that are to take place during school term time shall take place at school A, with all other handovers to take place inside the Suburb B Police Station.
The child X remain enrolled at school A.
The parties do all such things and sign all necessary documents to enrol the child Y in school A, to commence at the beginning of the school year in 2021.
The parties agree to jointly instruct a valuer to value the former matrimonial home, situated at C Street Suburb D SA.
Within 42 days the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.
This matter be listed for final hearing before Judge Brown on 10, 11 & 12 November 2021 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
The requirements of s.102NA (2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.
Further consideration of the matter is adjourned to 11 February 2021 at 9.30am for directions, including trial directions.
IT IS NOTED that publication of this judgment under the pseudonym Mullins & Lien is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1430 of 2019
| MR MULLINS |
Applicant
And
| MS LIEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to the interim parenting arrangements for X, born 2014, and Y, born 2015.
The central issue in the case, in my view, revolves around the parties’ inability to communicate effectively, with one another, in relation to care arrangements for their children. This difficulty arises against a marriage marked by allegations of family violence and coercive and controlling behaviour made by the mother against the father.
There are also issues to do with the child X’s schooling and Mr Mullins being included in any decisions being made with respect to the children.
Background
The parties in the case are Mr Mullins (the father) and Ms Lien (the mother). They met, in Vietnam, in early 2011 and began a relationship in or about April of 2011. The parties were married sometime in early 2012, in Vietnam, and Ms Lien then travelled to Australia to commence living with Mr Mullins.
The parties were then married in Australia shortly thereafter. Each party prescribes a different date to their marriage ceremonies, although they agree that these occurred in the first half of 2012. In any event, the parties finally separated in February of 2019.
Ms Lien alleges she was subject to ongoing family violence during the marriage. She alleges the father was emotionally and verbally abusive, as well as coercive and controlling considering he would monitor her finances and allocate her funds for use.
Ms Lien has further deposed that she took the children and left the former matrimonial home following a further incident of domestic violence. On 18 February 2019, she alleges that Mr Mullins verbally and physically abused her, putting her in a headlock and hitting her head against the wall, and prevented her from using her telephone. Mr Mullins alleges that he was only responding to the mother’s physical discipline of the children and, in effect, ‘told her off’, which led to an escalating argument about various other issues.
The next day, Ms Lien took the children and left the home while Mr Mullins was at work. Mr Mullins was unable to find the children or the mother immediately after separation, and was concerned that Ms Lien would relocate the children to Vietnam, given her Vietnamese heritage.
Ms Lien deposes that she also obtained an interim intervention order against Mr Mullins on 22 May 2019, which names her only as the protected person.
Prior to the first court date, the parties made contact and managed to negotiate an informal shared care arrangement whereby the children would live with the mother and spend each weekend with the father.
These proceedings were commenced, by Mr Mullins, when he filed his application on 11 April 2019. On a final basis, he seeks that the parties have equal shared parental responsibility for the children and that the children live, with each of their parents, in an equal time regime.
The respondent, Ms Lien, seeks that the children live with her and spend time with the father each alternate weekend during school term time, and for half of all school holidays and special occasions.
Orders were eventually made on 25 November 2019, by consent, following a family dispute resolution conference with family consultant E, which provided for Mr Mullins to spend time with the children on each alternate weekend during school terms and for half of the school holidays, with handovers to take place at the Suburb B Police Station.
Furthermore, an order was made for a family report, as recommended by Ms E, to ascertain the children’s views and assess the relationship between the children and each of their parents, given the animosity between the parties.
Mr Mullins, in an affidavit filed 7 May 2020, has also sought to agitate for property orders as part of his overall application. Essentially, Mr Mullins seeks that he pay a sum of $80,000 to the mother, and that he retain all other property of his, including the former matrimonial home, situated at C Street Suburb D SA.
Ms Lien has also since amended her response to include property orders sought. She seeks payment of a cash sum of half of the net matrimonial non-superannuation assets, as well as an equalisation of superannuation.
Additionally, an Independent Children’s Lawyer was appointed in October of this year, so very recently, given the intractable conflict that has been displayed by the parties to date.
The Family Report
The family report in this matter was prepared by Ms F, an experienced family consultant, in September of this year. Ms F noted that the matter was marked by allegations of family violence from the mother and concerns remained as to the parties’ ability to communicate with one another effectively.
She observed that each of the parties were very mistrustful of one another, and blamed the other for their communication difficulties. Ms Lien alleged that Mr Mullins was abusive and critical of her in their communications, while Mr Mullins stated that he had always been open to communicating with the mother and he was unclear why she refused the same.”[1] He denied that he was ever abusive in his communications.
[1] See Family Report at page 8 [32]
Ms Lien reiterated her claims that Mr Mullins was emotionally, verbally and financially abusive throughout the parties’ marriage, as well as detailing the incident that occurred on the day prior to separation. Mr Mullins denied any allegations of family violence, expressing the view that perhaps his direct communication style and loud voice was misinterpreted as abuse by the mother.
Ms F interviewed each of the children and observed each of them interact with their parents. X expressed his love for his current school, and had no criticisms to offer in respect of either party while in their care.
Notably, the only concern expressed by X concerned the inability of his parents to get along. He reported witnessing his father push his mother into a wall a long time ago, but held no concerns that his father would repeat such behaviour.
Y also presented as happy in each party’s care. He was limited in his responses, given his age, but in response to the question of what would he wish for if he had three wishes, Y responded ‘a little car’, and nothing else.
Ms F observed both children to be happy and relaxed in their sessions with each parent; they were comfortable with their mother and were excited to see their father.
Whilst Ms F expressed no concern about each party’s ability to appropriately parent the children, she was concerned that the children may be exposed to the high level of acrimony between the parties, as their conduct throughout the assessment made it clear that they were unable to communicate amicably face to face, if at all.
Additionally, she expressed doubt that Mr Mullins would be able to maintain self-control and avoid damaging the children’s relationship with their mother via his criticisms of her, her parenting, and her lack of communication with him about the children.
Ms F’ views and recommendations can be summarised as follows:
·Given the lack of effective communication between the parties, the court should consider making an order for sole parental responsibility;
·Orders to ensure that both parties are informed promptly of major issues for the children, to do with their education and health, would be recommended;
·Issues of family violence remained significant;
·Despite the father’s criticisms, there were no major evident concerns about the mother’s parenting of the children;
·It was clear that the children had a good relationship with both their mother and father;
·There were no immediate concerns regarding the safety of the children in each of their parents’ care;
·That it would be preferable that the child X remain at his current school as it would minimise disruption to his routine;
·That the current time spending arrangements continue, as this was clearly expressed and supported by X.
Legal principles applicable
In making orders for the care arrangements for children, I must regard the best interests of the children as the paramount or most important consideration.[2]
[2] Family Law Act 1975 s. 60CA
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[3] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[3] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a); (b); (d); (f); (g); (i); (j) and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·Any views expressed by the child and any factors that are relevant to the weight that should be afforded to such views;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the child’s circumstances;
·The capacity of each of the parents to provide for the child’s emotional needs;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned – one of which responsibilities is to encourage and support a relationship between the other parent and the child concerned;
·The age of the child concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k), directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
The legal principles to be applied at the interim and final hearing stage are the same. However, the format of the two types of hearing is fundamentally different. Interim hearings take place in a truncated form, without cross-examination.
Often the evidence, particularly of an expert nature, is limited. As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned.
Discussion
At this stage, I do not think it is appropriate to drastically alter the current care arrangements for the children. It is clear that both children enjoy a meaningful relationship with each of their parents and I am satisfied that each is safe in their respective care.
In my view, the current arrangements provide for sufficient and meaningful time between the children and each of the parties, and, importantly, are supported by X. The current arrangements are also supported by the family report writer and the Independent Children’s Lawyer.
However, at the hearing, Mr Mullins expressed the view that the interruption of his time on the Wednesday during school holidays makes it difficult for him to enjoy a holiday with the children. I will therefore make provision for the parties to agree on a week in which the father’s time will not be interrupted by the Wednesday handover.
Regarding X’s schooling, it does not appear to me to be in his best interests to change his schooling to Suburb G in order to suit Mr Mullins’ geographical difficulties. I am bound to make orders in the best interests of the children and, given X is well-settled and happy with his current schooling, as well as the disruption it would cause to his routine to change his schooling, I will order that he remain enrolled at school A.
Furthermore, I am of the view that the children should not be enrolled at two different schools, and so I will order that the child Y also be enrolled at school A, to commence next year.
I do acknowledge that the distance between the parties, and in particular between Mr Mullins and school A, presents some difficulty for the parties. Mr Mullins, at the hearing, raised the issue of having to pick up Y from kindergarten earlier during the day, and then having to wait several hours to pick up X from primary school.
However, as noted by counsel for the Independent Children’s Lawyer, Mr Hemsley, once the child Y has begun at school A also, this issue will be ameliorated. Therefore, I will order that the handover location remain at school A on school days and all other handovers will be conducted at the Suburb B Police Station, as an appropriate geographical midway point between the parties.
As I have already mentioned, it is clear that the communication difficulties between the parties, informed by the alleged history of family violence between them, remain the largest impediments to the parties enjoying an effective co-parenting relationship.
It also has large implications for the well-being of the children, as major long-term decisions, such as those regarding their education or health, will need to be made by their parents, and such decisions will become more frequent and important as the children grow and mature. This is an aspect that has already caused considerable tension between the parties, as Mr Mullins alleges he is being precluded from the mother’s decision-making because she will not communicate with him in relation to such issues.
I cannot resolve this issue at the interim stage. As such, I will re-list the matter for final hearing, so that these issues may be resolved. However, at this stage, given the high number of matters that are listed for trial next year, I cannot list this matter until November of 2021, regrettably.
For that reason, I will also make orders for short school holiday time, which will be in line with the time spending that has occurred until this point.
Additionally, the provisions of section 102NA of the Family Law Act prevent any party from cross-examining the other if there is an intervention order in place between them.
Given that there is currently an intervention order between the parties, the provisions are automatically applied to this matter. However, for the sake of clarity, I will still make a formal order pursuant to section 102NA preventing Mr Mullins from cross-examining Ms Lien during the trial, should he remain unrepresented. Mr Mullins indicated to me that he has applied for this assistance already.
In relation to the financial aspect of the proceedings, at the hearing, the parties expressed a joint view that the former matrimonial home should be valued in order to ascertain the value of the matrimonial pool. To this end, I will make an order for discovery and order that the parties jointly instruct a valuer to value the home.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 27 November 2020