Newett and Newett & Anor (No 4)

[2020] FamCA 856

FAMILY COURT OF AUSTRALIA

NEWETT & NEWETT AND ANOR (NO. 4) [2020] FamCA 856

FAMILY LAW – CHILDREN – interim – further interim orders made for the children to spend increased unsupervised time with the mother

Family Law Act 1975 (Cth)
APPLICANT:	Mr Newett

FIRST RESPONDENT: Ms Newett

SECOND RESPONDENT: Ms Adlam

FILE NUMBER: BRC 2179 of 2018

DATE DELIVERED: 2 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 2 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr S Richardson

Damien Greer Lawyers

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter

Carter Farquar Lawyers

Orders

1. That the Orders dated 17 June 2020 be varied to provide that until further Order, the children, X born … 2011, Y born … 2013 and Z born … 2014 (“the children”) spend time with the mother each alternate weekend on Saturday and Sunday between 9.00am and 5.00pm, with the next scheduled visit to commence Saturday, 10 October 2020.

2. That the Applications for Contravention and the Application in a Case seeking specific discovery be adjourned to a date to be fixed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2179 of 2018

Mr Newett

Applicant

And

Ms Newett

Respondent

And

Ms Adlam

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. This is yet another application that is being dealt with on an interim basis in less than ideal circumstances.  The parties all appear by telephone.  There is a high level of conflict, enormous amounts of material, not much of it new, but some of it updating.  I refer particularly to, since the last decision made by the Court in June 2020, the family report of Ms HH and the findings made by a judge of the District Court as are put before me.  At the core of what decision I need to make today is whether the Orders made by the Court, for the reasons previously given on 17 June 2020, should be varied before the trial, which is scheduled to commence before me for five days on 30 November 2020.

2. The directions I made for today’s interim hearing which as the parties all know are a truncated version of any process because of the inability, where there are disputed issues of fact, to make findings of a lasting nature were ordered to be limited to telling the Court how the current arrangements have progressed and to provide the Court with information as to any variations into the future.  Sadly, the mother, who is unrepresented, and then the father and then the mother responding to the father, took today’s interim hearing as a further opportunity to give more information, some of it new, some of it not new, to the Court, seeking to, in some way, challenge an earlier Order made by the Court.

3. Let me make it clear that there are appropriate methods by which interim orders of Judges in parenting cases are to be challenged, and that is by appeal.  So today I start from a position that the Judgment made by me and the Orders made on 17 June 2020 which at this stage provide for the two little girls to spend unsupervised time with their mother each alternate weekend on a Saturday and Sunday between the hours of 9.00am and 4.00pm.  The question is should they be varied.  As the record will indicate, the level of hostility that is present in this case is sadly very significant, but doing the best they can, each party made these submissions and identified the following proposals.

4. Mr Carter, who is the Independent Children’s Lawyer (“ICL”), says that although there are still concerns that exist in this matter, on an interim basis pending the trial he supports the current Order but extending time to 5.00pm – that is an extra hour on each of the Saturday and Sundays.  He does not support overnight time.  He does not support increasing the frequency of time.  Between now and 30 November 2020 there is no school holiday time.  It is all school term time.  His basis for maintaining the current arrangements, on his submissions, is that I infer notwithstanding the ongoing allegations of emotional abuse the father asserts against the mother, summarising from the family report yet to be tested, that the children have enjoyed the time with the mother and that the amount of time that is now being ordered limits any risk that the children might suffer if the mother’s behaviour is as the father charges her with.

5. I have identified, in exchange with Mr Richardson (for the father), that on the current proposal of the ICL, 9.00am to 5.00pm on a Saturday and Sunday each alternate weekend amounts to 16 hours of time a fortnight, which is significantly less than the amount of time the children are in the care of the father.  Mr Carter says that rather than speculate as to what might be appropriate after the trial, that it would be in the best interests of these children, as I understand his submission, to deal with events like Christmas, school holidays 2020/2021 and thereafter on an interim basis pending a judgment with submissions at the trial.  I agree with that submission.

6. As I have indicated on more than one occasion, the mother has been severely traumatised by the events over 12 months ago where the children, as a result of an interim Order made by a Judge of the Federal Circuit Court of Australia, changed residence.  I do not propose to restate what I have already stated in earlier Judgments.  The mother, who represents herself but is a law student, does not, it seems to me, fully grasp the processes of interim parenting orders, namely that absent some significant change of circumstances, the Court would not vary an interim order, especially an order made three months ago and only to last for a further nine weeks.  I again make the point that the only reason we are here today is because the Orders I did make in June 2020 contemplated the trial commencing, which had to be adjourned in September 2020 for reasons the parties understand, such that there was an absence of any order after 27 September 2020.

7. The mother says, for the reasons she sets out in her affidavit that there, in a sense, should be an immediate change of residence back to her and as paragraph 4 of her application sets out:

   “That a 6-12 week reprieve and reunification period be facilitated for the Children with no contact with their Father.”

   and after that reunification period that there be a period of supervised time for two hours each fortnight at P Contact Centre between the children and the father.  It may be just coincidental that the orders sought by the mother is the Order that was initially imposed upon the children when there was a change of residence.  Other aspects of the mother’s Application in the Case that go to schooling issues and the like are not required to be dealt with.  As I say, in my view, in respect of Christmas, Christmas holidays and into 2021 time, they are matters best left for the trial, where at least all if not most of the evidence will have been tested.

8. The mother maintains her position that the father is a risk to the child and it is on that basis that she maintains, and she has been consistent in this, that the children should live with her.  Mr Richardson, who acts for the father and has a good knowledge of this matter and who, it would seem, has been engaged in many other aspects of this case in the District Court of Queensland and perhaps also the Magistrates Court – and has, from earlier affidavits, been attacked by the mother as to his professional reputation, at times, in my view, so passionately advocates for his client’s position that he may lose sight of the way in which interim decisions have to be made.

9. I say that with respect to him because this has been a long and difficult case and it is not getting any easier.  However, for Mr Richardson to assert that I should, in some way, adopt the family report recommendations which I have explained to Mr Richardson are polarised depending on an assessment of risk by a Court, or certain opinions by the report writer in some way, is inconsistent with authority.  Those opinions have not been tested, but in any event, are not new.  The father goes further to contend that because of a notice given by a local authority that on its face suggests part of the yard might be overgrown, this should be seen as corroboration of an earlier statement made by a nanny of the parties back nearly 18 months ago about the mother’s house tidiness.

10. I have seen the Judgment of the District Court judge upholding the decision of the Magistrate.  They are matters which may weigh heavily, ultimately in this Court, but as I have indicated to the mother, who no doubt is aware of this provision – and I am sure as a result of the careful submissions of Mr Richardson is now aware of them – whilst section 69ZX3 allows the Court to receive into evidence and adopt findings of other courts, that is a matter of discretion.  The mother says that the decision of the District Court judge is under some form of “judicial review”.  I could not understand how that decision would be under any other review other than by appeal, but that is not a matter for me today.

11. Mr Richardson’s submissions say that as a result of the comments made in the family report, the continued - he would say - vexatious claims the mother makes to Police that have caused a welfare check to be conducted, he alleges; the fact that the mother continues to be abusive, vindictive and vexatious towards the father; that when these elements of the mother’s conduct in these proceedings are added to the “pursuit of spurious sexual abuse allegations”, he asserts this all demonstrates a highly dangerous mindset that poses a risk to the children.  Again, I am at pains to say that all this evidence is yet to be tested properly.  The mother seeks, in her affidavits, numerous though they are, to explain her conduct to show that this is not, in fact, a representation of her and that, for example, the assessment by Dr A which she strongly resists as being accurate, will not be found to be accurate by the Court.

12. The father seeks to return the children to a supervised time environment.  In my view - and this is where the evidence of Ms Adlam, the maternal grandmother, particularly at paragraphs 12 to 20 of her affidavit filed 23 September 2020, is very helpful.  Notwithstanding that she is the grandmother, there is nothing in the evidence I have seen that shows she is not a caring and loving grandmother.  Ms Adlam is obviously highly supportive of her daughter.  Her affidavits have an echo of similarity to those of the mother.  However, at paragraphs 12 to 20 she swears to the enjoyment the children experienced with their mother during the periods of time that she saw them, which was some six hours on or about 25 July 2020.  It may well be that with COVID-19 restrictions being relaxed that she is able to spend more time with her daughter and her grandchildren pending a trial.

13. I can understand why these little girls might express some concerns about returning to the father if they have had a good time with the mother.  However, to me the important reason why I intend to continue and expand the order to 9.00am to 5.00pm in accordance with the recommendation of the ICL unsupervised but on the current regime, is that level of enjoyment the children were observed to have by the maternal grandmother.  I adopt the submission of Mr Carter that to go further at this stage, either by overnight time or increasing the frequency which the mother desperately seeks, namely to weekly time is, in the context of all the allegations in this case, perhaps tempting fate in a way that the children could - I put it no higher than that - be exposed to some of the mother’s emotional concerns, and in saying that, there is plenty of evidence to show why the mother may be, through the history of this matter, emotional.

14. Accordingly, for the reasons I give, I will order that the Order of the Court made 17 June 2020 be varied to provide that until further order, the children, X, Y and Z, spend time with the mother each alternate weekend on a Saturday and Sunday from 9.00am to 5.00pm, with the next scheduled visit to commence on Saturday, 10 October 2020.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 October 2020.

Associate: 

Date:  12 October 2020