Newett & Newett (No. 2)

[2021] FamCA 186

FAMILY COURT OF AUSTRALIA

Newett & Newett (No. 2) [2021] FamCA 186

File number(s):

BRC 2179 of 2018

Judgment of:

BAUMANN J

Date of judgment:

19 March 2021

Catchwords:

FAMILY LAW – CHILDREN – Where the mother filed an Application in a Case seeking, inter alia, various stays, change of residence, restraint on the father’s solicitor from further acting in the proceedings and transfer to another Registry – Where the stays were not granted – where the matter was not transferred to another Registry – Orders made for telephone time between the children and the mother and between the children and the maternal grandmother.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 102NA

Family Law Rules 2004 (Cth) rr 11.17, 11.18

Cases cited:

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Number of paragraphs:

58

Date of hearing:

19 March 2021

Place:

Brisbane

Solicitor for the Applicant:

Mr S Richardson
Damien Greer Lawyers

First Respondent:

Self-represented

Second Respondent:

Self-represented

Independent Children’s Lawyer:

Mr A Kingston
Norman & Kingston

ORDERS

BRC 2179 of 2018

BETWEEN:

MR NEWETT

Applicant

AND:

MS NEWETT

First Respondent

MS ADLAM

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	19 MARCH 2021

THE COURT ORDERS:

1.That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am in September 2021 in the Family Court of Australia at Brisbane.

2.That paragraph 2 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

3.That paragraph 3 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

4.That paragraph 4 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

5.That paragraph 5 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

6.That paragraphs 6 through 8 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

7.That paragraph 9 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

8.That paragraph 10 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

9.That paragraph 11 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

10.That paragraph 12 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

11.That paragraphs 13 through 15 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

12.That paragraph 16 of the mother’s second further amended Application in a Case filed 17 March 2021 be adjourned to a date to be fixed.

13.That paragraph 17 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

14.That paragraphs 18 through 21 of the mother’s second further amended Application in a Case filed 17 March 2021 be dismissed.

Updated family report

15.That a Family Consultant be appointed by the Senior Family Consultant of the Family Court of Australia Brisbane Registry in this matter to prepare a family report (“report”) pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

16.That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children, X born in 2011, Y born in 2013 and Z born in 2014 (“the children”) and the factors contained in s.60CC of the Act the following opinions should be included:

(a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

(b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the children in the future.

17.That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

18.That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the children for those appointments (unless otherwise advised).

19.That the Family Court of Australia be responsible for payment of the cost of preparation of the report.

20.That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

21.That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone. For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Release of report

22.That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

23.That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

(a)A Children’s Court;

(b)A child protection authority;

(c)A State or Territory legal aid authority; and

(d)A convener of any legal dispute resolution conference.

24.That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

25.That the children shall spend time and communicate with the mother each Wednesday and each Sunday, to commence Sunday, 21 March 2021, between 6.00pm and 6.30pm (Queensland time) by telephone on the following conditions:

(a)the father shall provide to the mother details of the telephone number she should ring to commence the call;

(b)the mother shall initiate the call at the time the call is to commence at the number provided by the father;

(c)if possible, because of the technology available to each party, for the call to occur by FaceTime or other electronic means, that would be Court’s preference;

(d)the father is to ensure the children are available to receive the call from the mother at the time prescribed by this Order and that the device the children use is charged and in an area where the call or contact from the mother can be activated;

(e)all communication between the mother and the children shall not be recorded by either the father or the mother or any other person; and

(f)the children are to have the opportunity to spend time with the mother by telephone in private.

26.That, on the same conditions as those in Order 25, the children shall spend time and communicate with the maternal grandmother each alternate Saturday, to commence 27 March 2021, between 6.00pm and 6.30pm (Queensland time) by telephone.

27.That the mother, father and maternal grandmother shall not discuss these proceedings with the children or raise other issues of adult conflict with the children.

Trial directions

28.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 23 August 2021.

29.That each party file and serve on each other no later than 4.00pm on 30 August 2021:

(a)one (1) consolidated Affidavit of evidence in chief; and

(b)one (1) Affidavit of each witness intended to be relied upon at trial.

30.That each party file and serve on each other no later than 4.00pm on 13 September 2021, a case outline setting out:

(a)a precise minute of the final orders sought;

(b)a relevant chronology; and

(c)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

31.That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

32.That in the event that either party wishes to cross examine the family report writer at the Final Hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 30 August 2021.

33.That the Independent Children’s Lawyer be at liberty to apply.

34.That these proceedings be adjourned for Judgment Delivery at 1.00pm on 31 March 2021 in the Family Court of Australia at Brisbane.

IT IS NOTED:

A.That it is requested that the Senior Family Consultant of the Family Court of Australia at Brisbane give consideration to the appointment of Ms HH preparing the updated family report, given Ms HH’s previous involvement with this family.

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 Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. This is a complex matter that involves a number of issues.  Today I propose to make some Orders that, hopefully, will allow the currently adjourned parenting case to be listed and heard as soon as possible, considering the factors which I raise.  The other issues I am required to deal with today include applications by the mother for stays of various earlier Orders made by the Court on 1 December 2020, 9 December 2020 and 25 February 2021.

2. The mother seeks other relief in her application, as I say, which I will deal with.  Importantly and perhaps the most important issue is the interim parenting arrangements in relation to the three children the subject of these proceedings, X born in 2011, Y born in 2013 and Z born in 2014.  They have not seen their mother now since they were recovered by police as a result of my Recovery Order executed on or about 15 December 2020.  In respect of that matter, the maternal grandmother, Ms Adlam, is a party, and she has participated in today’s hearing and has made submissions, although she has not recently filed any more evidence.

3. The mother and the maternal grandmother do not have legal representation.  The father is represented by Mr Richardson, a solicitor, and as a result of an Order I made on 30 November 2020 allowing the Independent Children’s Lawyer (“ICL”) at that stage to withdraw, Mr Kingston has been recently appointed by and funded by Legal Aid Queensland and has made submissions on some aspects of the matter.

4. It is not necessary to set out in these Reasons a full history of the matter as much can be taken from the Reasons delivered on 25 February 2021 where the history was set out when dealing with an application that I recuse myself from further participation in this matter.  Whilst I accept that an Appeal was filed by the mother against the dismissal of her application (that Appeal having been filed on or about 12 March 2021), one of the stay applications the mother has brought appears to relate to that Order.  I will rely upon those earlier Reasons in terms of the history to the extent necessary.  I propose to deal with the matter under the following headings.

   PROPERTY PROCEEDINGS

5. It is apparent to all that the property proceedings were dealt with in the absence of the mother as a result of Orders made on 30 November when I bifurcated the property and parenting proceedings and proceeded to a hearing in the absence of the mother on 1 December.  Within days of the hearing being completed and before any further applications had been filed before me, I had prepared draft Reasons.  With the intervention of Christmas and time on leave, it was not possible to deliver the Reasons that I had prepared before new applications had been filed by the mother of which the current second amended Application in a Case is the final version.

6. Because that new application had included an application that I recuse myself, I took the view that it was important to deal with that application first, before any other applications in which I had been involved were dealt with by me.  The records will reveal, of course, that that application for recusal was the subject of submissions on 11 February and written submissions on 14 February and a decision of 25 February 2021.

7. The matters that were still pending before the Court were adjourned until today for Case Management Hearing and further directions.  It is a view I have expressed to the parties today that it would be inappropriate to consider and/or to take submissions in relation to any financial matters before I delivered my Reasons arising from the trial unless I was prepared to re-open the proceedings.

8. I am not, at this stage, prepared to re-open the proceedings, because, as the Reasons when published will reflect and for the Reasons set out there, I formed the view that I required further submissions on an aspect of the orders that I was being asked to make and was going to, and intend to still, seek the parties to make submissions to me.

9. Even though the wife did not appear at the property trial she will have an opportunity to make submissions in accordance with those Reasons as, of course, will Mr Richardson for the husband.  It is for that reason that I do not believe it is appropriate to consider either the application of the mother so far as it relates to property proceedings or the response by way of cross-application of the father in respect of those aspects, and I do not make further comments about them today.

   STAY APPLICATION

10. The mother has accurately identified the principles that a Court must apply when considering staying an Order pending an Appeal.  It is, of course, as with any stay application, the initial position that the Judgment of the Court under Appeal and the Orders then made are correct, and a litigant with the benefit of that decision is entitled to rely upon that decision.

11. The mother’s general proposition is that her Appeals will be rendered nugatory if Orders I have made are not stayed.  I deal with the applications for stay in the second amended Application as follows.

    Order 1 December 2020

12. Bifurcation was provided for in the Orders made on 30 November 2020 after the ICL was given leave to withdraw on the first day of the Final Hearing.  I accept that the mother objected to the bifurcation and, in a sense, objected to the property matter proceeding.  However, for the Reasons that were delivered on 30 November 2020 the Court proceeded in the way that it did.

13. The Orders on 1 December 2020 about which the mother, understandably, was quite disappointed and perhaps concerned, was my Orders 5 and 6.  Order 6 is not an Order, save to the extent that the Court noted, for the benefit really of the mother who was not present, that the current interim parenting Orders shall remain in full force and effect until further Order.  The evidence, of course, is that on at least 5 December 2020, the parents did comply with the then interim parenting Orders.

14. The evidence is that, on 6 December 2020, the mother, she says for reasons which she has explained and were justified in respect of her actions, did not comply with the Order.  Nonetheless, the Application of the mother that was filed on 18 November 2020 for interim orders that had been adjourned pending the parenting hearing, was dismissed, on 1 December 2020 by me because the mother “failed to prosecute her claim”.

15. However, we have today had the benefit of the mother’s new application for parenting variations to be determined.  There is no utility in staying Order 5, as a result, as the Court has permitted, as it should have, the mother to agitate for a change in the parenting arrangements even though her Application of 18 November 2020 was dismissed.

    Order 9 December 2020

16. The mother, sensibly, acknowledges that there is no point in seeking to Appeal and/or stay the recovery Order, because it has been put into effect.  She seeks a stay, however, of two Orders that were made, namely, Order 2 that says:

    2.That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the father’s care until further order of the Court.

    and 3, that says:

    3.That the children’s time with the mother pursuant to Order 1 of the Orders dated 2 October 2020 be suspended.

17. Those Orders made by the Court on an interim basis have been, in my view, considered in the interim parenting decision that I have been asked to make today.  In the circumstances, there is, in my view, no utility to any stay in respect of those Orders.

    Order 25 February 2021

18. The mother finally seeks a stay of the Order made 25 February 2021, namely, that:

    1.That the mother’s application for recusal of the Honourable Justice Baumann in these proceedings be dismissed.

19. She has, as she is perfectly entitled to do, filed an Appeal.  The law, in my view, is clear.  Whilst the decision by a Judge to not disqualify himself or herself has been made, then the Judge should, as a matter of duty, continue with the case that they have before them.  It is for this reason that I intend to list this matter before me for trial commencing Monday, 20 September 2021.

20. I appreciate that the parties would like an earlier trial than that.  I rely upon the earlier history of this matter to show the attempts the Court has made to have the matter listed for trial.  The work of the Court does not allow the Court to provide an earlier trial of this matter before me and, as I am still the Judge with the carriage of the matter, that is the earliest date I can provide it.  All the parties seem to agree it will take at least five days.

21. But there is another reason why 20 September 2021, in my view, is the appropriate date.  The mother’s Appeal against a number of my Orders, and particularly the Appeal against my refusal to recuse myself, have yet to be determined by the Full Court.  If the Full Court takes the view that I ought to have recused myself, then it would not be appropriate to have commenced a trial at all, because that would only cause the parties in those circumstances to be engaged in a further trial with significant costs complications.

22. Although the Full Court has sittings in Brisbane in May, July, August and December 2021, it would be my anticipation, with or without expedition, that the Appeals of the mother will be dealt with by the Court, at least hopefully, by the July 2021 sittings in the Full Court.  If the Full Court requires this Judge to be recused, then there will be sufficient time for a new Judge to take the matter on in September.

23. I return to the concern that arises from a trial in this matter being not listed until September 2021 when I deal with other aspects of the mother’s application before me today.  At least, for the reasons given, I will be dismissing the mother’s applications for stay, but I shall deal specifically with the application and make any further comments when ruling on the order in relation to the application at the end of these Reasons.

    INTERIM PARENTING DISPUTE

1. The most important issue before the Court at this stage, in my view, is that, as submissions from the mother, the maternal grandmother Ms Adlam, the father through his lawyer Mr Richardson, and the newly appointed ICL Mr Kingston, identify, that the children, who were spending unsupervised day time with the mother under Orders I made on 2 October 2020, have not spent any time with their mother since they returned to their father on 15 December 2020.

2. In that regard, as my Reasons delivered in the recusal application identified at paragraph 24(f):

   (f)The mother’s submissions misunderstand that the attempts by the Court to have the matter proceed to a final hearing was all about “testing” the evidence, both as to the alleged risks each parent raises against the other within the ultimate obligation of what orders are in the best interests of the children. It is not possible to “test” the evidence in the way the mother seeks at an interim hearing. In any event, whilst the mother has consistently urged the Court to “reverse” the Orders made by Judge Spelleken which changed the children’s residence to the father, on at least two occasions (12 June 2020 and 2 October 2020) the Court, for Reasons published, decided not to do so …

3. In essence, the Application by the mother today is to change residence.  She relies, as I will soon explain, on substantially the same evidence that she has put before the Court on numerous occasions before now.  The concern about the inability to test many of these highly contentious and, therefore, controversial allegations by the mother has been explained to the mother before, and I accept that, from her perspective, allegations that she believes are, in her words, “prima facie” consistent with her view should be accepted by the Court.

4. It has not been easy for this mother, who desperately is missing her children, I accept, and who genuinely believes the father is a significant risk to the children, to lay idle whilst she is not seeing the children, and even when she was, when they were continuing to live with the father.  The transcript of today’s hearing makes it clear again how passionate the mother is and what a strong advocate the mother is for what she believes are the best interests of her children.

5. However, as I had made clear previously, when Courts make orders, as I now have on at least two occasions in relation to the mother’s primary position that the children’s residence be altered and have not done so for the reasons given, I ought not, as a matter of principle and practice, revisit earlier Orders made unless there has been a change of circumstances and there have not been, in my view, for the reason which I explain to the mother now.

6. Before doing so, and turning quickly to the very significant evidence the mother has put before the Court on this occasion again, I note the competing proposals seem to have been articulated as follows.

7. The mother in her Application in a Case seeks that the children be removed from the father; effectively, that the children now live with her.  She goes further to indicate in her Application in a Case that the time between the children and the father effectively cease.  This is apparent from applications made:

   13.That the Mother be ordered to retain the Children in her care and sole responsibility, pending the outcome of Appeals …

   14.That the Father … and Paternal Family be restrained from any contact with the Mother, Grandmother, Maternal Family and Children pending the outcome of Appeals …

8. The father’s proposition for today and for consideration is set out in his cross-application by way of Response to an Application in a Case at paragraphs 2, 3, 4 and 5, which is effectively that the mother spend time with the children, “supervised by, and take place at, P Contact Centre in Suburb CC, City T” for “not more than two hours” a fortnight.

9. The maternal grandmother’s position is that there are no risks at all to the children in the children being placed in her care for holidays, including the forthcoming Easter school holidays, and that it is in the best interests of the children that they spend that time with her and her husband, the maternal grandfather.  Although the evidence of his current state of health is not before me, I accept the grandmother’s position that the grandfather is confined to a wheelchair; is in poor health and could not travel to Queensland or even AH Town to spend time to see his grandchildren.

10. Although there is limited evidence as to where the mother is actually living, in her submissions, she indicated that she is living in Sydney.  My understanding is that the grandmother lives in City EE.  The father, of course, lives with the children, under the Orders made by the Court, in City T.  In terms of what are, consistent with authorities such as Banks & Banks (2015) FLC 93-637 and Goode & Goode (2006) FLC 93-286, the agreed facts and disputed facts, to be fair, there are very few agreed facts.

11. The history as set out in earlier Reasons indicates what has occurred and I do not need to repeat them today and I say that for this very basic reason.  There is nothing new in the evidence of the mother that would persuade the Court, on an interim basis, without the testing of all the evidence, as can only be achieved through a trial, to remove the children from the father on an interim basis and place them in the residential care of the mother.

12. Accordingly, in my view, the only issue that the Court is able to consider today is whether or not, and, if so, in what way, the children spend some time with their mother, either physically or electronically.  Also, the Court must give consideration to the separate right of the children to spend time with the maternal grandmother.  In dealing with those factors I wish to make the following comments about the mother’s material to which, during the submissions, I referred.

13. In so doing, I acknowledge that, again, on an interim basis, it is not possible for the Court to make findings about disputed facts of which in this case there are many.  The mother has made it somewhat easier for the Court by having headings in her most recent affidavit which contain, some 306 pages of annexures.  I deal with her affidavit in terms of the headings that she sets out:

    (a)At paragraphs 4 to 32, the mother continues to assert that the evidence is overwhelming, and that the father “cannot assert [she is] a risk to the children”.  The mother relies upon, to some degree, a document at page 233 of her recent affidavit, being an unsigned letter by Dr V, a Consultant Psychiatrist.  It is not clear how recently Dr V has seen the mother.  Nonetheless, I set out his statement in full as follows:

    This is to state that I am Ms Newett’s treating Psychiatrist, and she has consulted me multiple times over the last 12 months

    She has developed an Anxiety Disorder in the context of significant stressors mainly related to the ongoing court/ legal proceedings with regards to the custody of her children; and is on treatment for the same.

    In addition to the anxiety as described above, Ms Newett also has features of PTSD, which had possibly developed in the context of some traumatic experiences in the past.

    I am given to understand that Ms Newett is currently in NSW and has been asked to return to QLD to appear in Court.

    My concern is that forcing her to physically attend court in QLD might aggravate her PTSD symptoms and her Mental Health is likely to deteriorate.

    Thus I would request the Court to allow her to attend the Court proceedings via phone or video.

    (As per original)

    The very brief statement by Dr V is not, in any sense, a full psychiatric assessment, nor was it meant to be.  It is clear that it was directed to “To whom it may concern” and the material suggests the Court it was directed to initially may have been the Magistrates Court, or maybe the Appeal Court.  At no time has this Court asked the mother since she has been living in New South Wales to appear personally before the Court.  At this stage, that most recent letter by Dr V, without testing all the evidence, does not provide sufficient background evidence to counteract the other evidence before the Court, including that of Dr A, notwithstanding that may have changed during the course of the proceedings the mother commenced against him in the Supreme Court.  All these issues are triable issues and cannot really be dealt with on an interim basis;

    (b)“Domestic Violence Orders”. Paragraphs 15 to 32. The mother in her affidavit refers to a number of temporary protection orders and other steps taken in or under the State legislation, but what the evidence does show, of course, is that there is a protection order in favour of the father for five years that was made by a Magistrate and survived an Appeal brought by the mother to the District Court. To the extent that the mother seeks to rely on temporary protection orders as a way of saying that s 60CC applies to those but do not apply to the final order that went on Appeal and that Appeal was dismissed, her argument lacks merit. I accept that these parties have had a difficult history and the mother has and continues to ask the Court to make findings about the father’s behaviour, including an alleged strangulation. They are, again, triable issues;

    (c)“Family Report of Ms HH”. Paragraphs 33 to 41. The mother is correct when she asserts, and the Court has been aware for some time having read Ms HH’s report, that the children did raise concerns about some of the father’s behaviour. The mother says this is a clear example of family violence and so the children should be removed from the father. She takes certain comments made by the children and certain opinions expressed by Ms HH in isolation. I accept that the children have genuinely expressed a view that they wish to live with their mother. For children of this age, as for all children, the wishes to be considered under s 60CC(3)(a) is but one of the factors that the Court must consider in terms of what is in their best interests. Again, the family report of Ms HH is untested. There have been events that have occurred since Ms HH completed her report which may, subject to hearing further submissions from Mr Kingston, the ICL, require an updated report to be prepared;

    (d)“The Psychiatric Report of Dr A”.  Paragraphs 42 to 51.  It has been a consistent allegation by the mother that the Court appointed expert psychiatrist, Dr A, who provided a report dated 16 October 2018 to the Federal Circuit Court of Australia “was corrupted by the interference of former Independent Children’s Lawyer”.  The mother’s evidence raises issues about that.  It is worth noting, of course, that Mr Carter, the ICL who was the subject of the criticisms of the mother, is no longer the ICL in this matter.  There is no doubt that the report of Dr A was relied upon by Judge Spelleken, as her Reasons make clear.  It was Judge Spelleken who made an interim Order that the children reside with the father, which has been the position now for over two years.  She seeks that the report be struck out.  It is not clear to me whether the ICL wishes to rely upon the report of Dr A or not.  Any discussion as to whether Dr A’s evidence ought be “struck out” is a matter that must be dealt with before the trial, not today.  If it is not struck out, of course, the mother will have every opportunity to cross-examine the doctor.  It is apparent from earlier comments made by Mr Carter, when he was the ICL, that because of litigation engaged in at the instigation of the mother against Dr A in the Supreme Court of Queensland, that Dr A is not prepared to do an updated report.  Whether Mr Kingston, as the new ICL, regards it as appropriate to obtain further psychiatric evidence of either party is a matter he can address me on at a later date;

    (e)“Removal of Children to Safety – 6 December 2020”.  Paragraphs 52 to 72.  The mother asserts she removed the children for “safety reasons”.  This was the position she articulated on 9 December 2020 when she appeared before me by telephone, having failed to return the children the previous Sunday under the Orders made.  It has always been her position that the children are at risk in the father’s care.  Reasons were given why the recovery Order was made.  I accept that, to some degree, the decision for the recovery, whilst challenged by the mother, is not now the subject of an Appeal because it has been put into effect.  I propose to say nothing further about the recovery hearing, lest it be a matter that is still to be determined by the Full Court;

    (f)“Recovery Day”.  Paragraphs 73 to 90.  The mother gives evidence that she says the police were told by the father that the mother was “psychotic” and “delusional”, and makes other allegations about what she says the police were told.  This may be a matter about which the ICL should obtain further evidence from New South Wales Police and/or Australian Federal Police such as were engaged in the recovery of the children.  They are, yet again, allegations strongly made by the mother but yet to be tested.  In particular, at paragraph 82, the mother strongly asserted the father had misled the police and committed perjury.  At paragraph 86, the mother asserts the father is “delusional” and “paranoid”.  The events of that understandably difficult period where the children were required to be returned to the police against the mother’s wishes are matters which might properly be considered by a new report writer or a fresh report if it is thought that it has had a significant effect upon the children.  Nonetheless, a trial is the appropriate forum for the allegations made by the mother to be tested.  I have already indicated I do not propose to make any further comments about financial matters, some of which are contained at paragraphs 91 to 100;

    (g)“Domestic Violence Order falsely applied by father in favour of Mr Newett”. Paragraphs 101 to 110. The mother asserts a domestic violence order the father is in possession of is completely irrelevant. Clearly, it is not. Section 60CC(3)(k) requires specifically the Court to consider any family violence order. There is a final order made, as I earlier indicated. The mother asserts at paragraph 109 that the father “is in possession of an unlawfully applied DV Order”. There is no evidence to suggest that the orders, having been initially made by a Magistrate after a trial and then subject to the scrutiny of Appeal, that currently exist had been “unlawfully” applied for. At one stage the mother indicated that the decision of the District Court Judge was under some form of judicial review or appeal. I have no evidence about that at the moment and, in any event, until it is set aside, the Reasons for Judgment and subsequent Orders of the District Court Judge stand firm;

    (h)“Children’s Rights”.  Paragraphs 111 to 119.  There is nothing in these paragraphs of the mother’s affidavit, which she conceded in her oral submissions today are a mixture of submissions and evidence, that has not been dealt with previously;

    (i)“Events in the Father’s Criminal Proceedings to attempt to Pervert the Course of Justice”.  Paragraphs 120 to 126.  The mother refers to proceedings before a State Magistrate in February 2021.  I have no details of that hearing, no transcript and no orders.  It is unclear to me whether the orders made by the learned Magistrate related to family violence proceedings or related to the ongoing criminal proceedings privately commenced by the mother against the father and a number of other persons that are referred to in earlier Reasons of this Court.  However, simply, the matters relating to the criminal proceedings are matters for the Court that has the power to deal with those matters which is, at this stage, the Magistrates Court.  It is worth noting, however, that at paragraph 126 the mother asserts that because “justice cannot be achieved in the State of Queensland” the family law proceedings must be moved to the Sydney Registry.  I will deal with that evidence and the other submissions I heard about a change of forum shortly;

    (j)“Further Abuse and/or Neglect of the Children”.  Paragraphs 127 to 134 of the mother’s affidavit sets out what she says are actions which she accuses the father of which represent further abuse and neglect.  Because the mother chose to file, for the first time, those allegations in an affidavit of 18 March, the father had already, by that stage, filed his reply affidavit to the initial affidavit.  However, I do note, for example, that the mother is concerned (see paragraph 127) that X has a “new lump in her throat” and opines, concerningly, that X is at risk of developing thyroid cancer, and the father may again be “neglecting to give her life-essential medication”.  The mother refers to what she says has been medical evidence from a Dr RR, X’s paediatrician.  There is no evidence before me that I could rely upon to justify the mother’s concerns in that regard but, again, I would invite the ICL to consider a further subpoena to the child’s paediatrician.  Again, these allegations of continued abuse and neglect that the mother hurls at the father will need to be tested at a trial.  That is the appropriate forum; and

    (k)“Valid Legal Reasons”.  Paragraphs 135 to 138.  The mother seeks the issue of constitutional writs in the form of writ of mandamus from this Court.  The application is flawed, even if it had been properly made, which it has not, because it merely finds its way as so much of the relief the mother now seeks to include, in her affidavit.  That is a matter she can raise with the Full Court.  I propose to say nothing further at this stage.

    CONCLUSION

14. There is no basis upon which, on an interim basis, the Court is persuaded in the interests of the children that there should be a change of residence.  The mother at least lives in Sydney.  A change of residence would require a change of schooling.  I say that because the mother has formed the view that she cannot return to Queensland.  I know of no order of any Court in Queensland that seeks to prevent her from returning to Queensland, however, the mother asserts she has no option other than not to return to Queensland.

15. The children are of school age, have been in the care of the father for over two years now as a result of Orders of both the Federal Circuit Court of Australia and this Court and go to a local school.  There is no basis on the evidence before the mother, untested as it is, that would persuade the Court to change residence on an interim basis.

16. The mother seeks that the children spend unsupervised time with her, presumably, if they do not live with her.  The mother says that her actions on 6 December 2020 by not returning the children to the father according to the Order were justified.  That is a triable issue.  The Court cannot ignore that the mother did not comply with an Order, and thereafter, there were some days before the police were able to identify her whereabouts and, perhaps with the support of the mother, although that is unclear, return the children via the police to the father.

17. There is a reasonable apprehension that the father has, as a result of that conduct and the history of this matter, that if the children were to spend unsupervised time with the mother, that they would not be returned to him.  The mother feels that she is justified in protecting the children.  I understand that is her position.  That is a triable issue.  Accordingly, I could not, on the evidence of this case, comfortably place the children in the mother’s unsupervised care.

18. That, of course, was the Order I made in June 2020.  It also had the benefit, at that stage, of the children being able to spend time with the mother at the home that had previously been the family home.  With the COVID-19 restrictions released it was able to be the location for the maternal grandmother, at least, to travel to and spend some limited time with her grandchildren which, I accept, the grandchildren enjoyed.

1. However, the mother is not living in that home and has indicated there is no prospect of her coming to Queensland to do so.  All these factors, again, combine to make an order for unsupervised time at this stage not appropriate.  I will turn to the position of the maternal grandmother shortly.  Mr Kingston, the ICL, indicated and offered a proposition that he would support the children spending supervised time with the mother at a community contact centre at AH Town.

2. It was not a proposition he had put to the parties beforehand.  I raise no criticism of Mr Kingston in that regard.  This matter has been moving at a significant pace.  However, there is no evidence before me as to whether AJ Services in AH Town, the place suggested by Mr Kingston, would be able to offer this family an opportunity for supervised time; what the delay, after completion of all intake procedures had been completed there would be in having visits commence; and how often and for how long such visits could occur.

3. Leaving aside those difficulties, the mother has made it clear that she would not be able, although she is desperate to see her children, and would not avail herself of a supervised contact opportunity at AH Town.  Mr Kingston made it clear that his suggestion of AH Town was to take account of the mother’s express fear of coming into Queensland.  However, the mother’s position is clear and unequivocal, and in the circumstances, there is no utility in the Court making an order for visits to occur in AH Town when the mother would not be taking up those opportunities.

4. Accordingly, it seems to me in the current circumstances pending trial, unless the mother was, for example, to return to Queensland and make some other proposition for supervised time in Queensland, the children are not likely to have any physical time with their mother before a trial.  I regard that as a matter of significant regret.

5. It is important to see the maternal grandmother as a separate party, as she is.  Her previous evidence, as I have referred to in earlier Reasons, and her submissions today are all, not surprisingly, highly supportive of her daughter.  She believes her daughter is not a risk to her grandchildren.  She believes her daughter has been unfairly treated.  She adopts the mother’s position that the father is a risk to and is abusing the children, but above all else, she is keen to allow these children to continue to maintain a relationship with her and her husband, the maternal grandfather.

6. I do not propose to again go through the discussions of the case in my Court on 1 December 2020.  It is referred to already in the Reasons for failing to recuse myself and it might be a matter for further consideration by the Full Court.  However, I do not regard it as anything other than a completely genuine application by Ms Adlam that the children see her and the maternal grandfather.

7. The difficulty I have, however, is that the mother, although she says she will give an undertaking not to remove the children from her mother’s care, is, I believe, at least a possible risk of doing so for the same reasons that she failed to return the children on 6 December 2020, namely, that she feels she is justified in removing the children from the control and care of the father.

8. I accept this is a very difficult position for the maternal grandfather whose state of health would not, the maternal grandmother says, and I accept, permit of him to travel to Queensland.  Ms Adlam indicated to me, effectively, that the only time that she was prepared to spend with the children would be at her home.  For the reasons given, I am not prepared to make such an order today.

9. Subject to any further submission from the ICL about progressing the matter towards a trial for the week commencing 20 September 201, I wish to deal with some other issues raised in the second amended Application in a Case:

   (a)The matter has been heard urgently and via Microsoft Teams;

   (b)The mother’s application for an injunction to prevent me delivering my property Judgment is not appropriate and will not be made for the reasons I have already given;

   (c)The application that the property matter “be remitted to be heard de novo by an expert financial judicial officer” is akin to the application for recusal that has already been dealt with;

   (d)The mother seeks that there be a “Barro or Hogan Order” to the extent of $130,000.  That application should be seen within the context of the current status of the property proceedings.  In my view, it is a matter best left to when I deal with submissions arising after delivery of my property Judgment;

   (e)The mother asks that the Court make an order that “the Parenting matter be remitted to be heard de novo by an expert Domestic Violence focused and suitably qualified judicial officer”.  This is again an application effectively for recusal that has already been dealt with;

   (f)Paragraphs 6, 7 and 8, effectively, seek to deal with the stay which I have already dealt with.  Paragraphs 6, 7 and 8 will be dismissed as well;

   (g)The mother seeks an order that “all Family Court Registries be restrained from editing, deleting or voiding any application brought before the Court, and be required to process the Mother’s applications, subpoenas, evidence, bundles, and other case materials within 24 hours of email or portal receipt, on any business day”.  To the extent that the Court may, and I put it no higher than that, have a power to direct the administration of the Court to take any particular actions, I would refuse to do so.  It is a matter for the administration of the Court to attend to its administrative duties.  If the mother says there is some basis under the Administrative Decisions (Judicial Review) Act 197, then she can undertake such application;

   (h)the mother seeks an order that “an immediate Revocation Order be applied to any active Orders existing with Queensland Police and/or the Australian Federal Police, including all monitoring and tracking activity” (emphasis removed).  Even if the Court had the power to make such an order, no order would be made unless those against whom it was directed, namely, Queensland Police and/or Australian Federal Police, had been given an opportunity to be heard on it.  Furthermore, I do not know whether there is any monitoring or tracking activity.  As far as I am concerned, the Court would have limited jurisdiction to make such an order.  The application is dismissed;

   (i)I have dealt with the mother’s application that the children “be immediately returned to sole care and responsibility of the Mother”;

   (j)The application by the mother that the children and all their personal possessions be returned to New South Wales by the Australian Federal Police will not be made because the children will continue to reside with the father;

   (k)I have dealt with paragraphs 13, and 14 and 15 of the mother’s second amended Application in a Case;

   (l)The mother seeks an order that “Scott Richardson be restrained from any further conduct on, or exposure to, BRC2179/2018 including contact with any of the Parties to the Case on the basis of his Criminal Actions against the Mother conducted during the BRC2179/2018 case and for the benefit of the BRC2179/2018 case; where prima facie evidence exists before the Court; and the Current Proceedings on foot before the Magistrates Court” (emphasis removed). There is nothing in the material thus far presented by the mother that would raise a concern about the father continuing to retain Mr Richardson. It is a significant step for a Court to actually tell a litigant they cannot use a lawyer of their choice. I accept that the mother is unrepresented and, notwithstanding the appointment of lawyers under the s 102NA cross-examination scheme she still, sadly, does not have a lawyer representing her today and it seems unlikely into the future because of her financial circumstances. To the extent that this is an application under the principles of law that apply for the lawyer for the father to be removed or restrained from acting, the current evidence does not in any way reach the level that that would occur. The mother talks, of course, about current criminal proceedings without acknowledging that they are not criminal proceedings brought by the police, to the best of my knowledge, but private criminal proceedings brought by her. I have no information before me at the moment as to the state of those criminal proceedings in the Magistrates Court. However, the father has not, it seems, had an opportunity to respond to this, and if it is an application which is going to be pressed by the mother, then I will set it up for a proper application at a future date, but the mother would need to file an affidavit that complies with the requirements of the law and the principles that apply before it could be seriously considered. Accordingly, at this stage I will not dismiss paragraph 16 of the application, but will adjourn it for further hearing on a date to be fixed; and

   (m)paragraph 17 seeks that the matter “be relocated to the Lighthouse Project commencing 2021 in Sydney City registry”. The application is flawed. To the extent that I should see paragraph 17 as consistent with the application that the mother has for change of venue, I deal with it in this way. The application has been before the Courts in Queensland, as was indicated earlier, since March 2018. The mother has a view that she says she is justified in holding, that she cannot get justice in Queensland. Her application is supported by an affidavit in which she makes allegations such as corruption in the Family Court of Australia, corruption of Judges, corruption of the ICL, corruption of the police and corruption of Legal Aid officers, to name but a few. None of these allegations have been proven. The mother has chosen, because she feels unsafe in Queensland, to remain living outside the State of Queensland. I will again make the point that there is no evidence before me that restrains the mother from coming to Queensland, but I accept her constitutional right to live where she chooses to live. Under r 11.17 of the Family Law Rules 2004 (Cth) a person such as the mother is entitled to make an application to have a matter transferred to another Registry. The factors to be considered are set out at sub-rule 11.18. I deal with the factors sequentially now:

   (i)The mother says there is a public interest in moving the matter to New South Wales because of the corrupt conduct of a number of people in Queensland.  That is not proved and I do not regard that as a relevant consideration in this case;

   (ii)The Court is to consider whether the case, if transferred or removed, is likely to be dealt with at less cost to the parties, at more convenience to the parties or earlier.  The matter has been listed for trial before me, as the docketed Judge, for the week of 20 September 2021.  I am not satisfied there is any prospect if this matter was transferred to any Registry in Sydney or even Parramatta that it would get a trial date this year due to the state of their lists.  Although it would, I accept, be more convenient for the mother if the case was in New South Wales, it is not, in my view, convenient to the father; it is not convenient to the evidence of the witnesses such as the report writer, Ms HH and any new report writer; it is not convenient to take evidence by phone of school teachers, if they are called, or any other witnesses who have given evidence in this case;

   (iii)The Court is to consider “the availability of a judicial officer specialising in the type of case to which the application relates”.  This is a parenting case.  I have been a judicial officer for over 20 years.  I am available to hear the case and have given it a date for hearing; and

   (iv)The other factors do not shape the discretion I am asked to consider, other than sub-rule 11.18(1)(h), namely “the wishes of the parties”.  I do take into account the mother’s wish to have the case heard elsewhere.  I do take into account that she has articulated a reason why she believes that wish should be considered, and I have considered the basis of why she wishes the matter to be transferred.  However, I also considered the wishes of the father and the ICL.  For these reasons, I refuse the mother’s application to transfer the case out of this Registry.

   I should also indicate as a matter of completeness, that the “Lighthouse Project” is a project that applies only in the Federal Circuit Court of Australia, not in the Family Court of Australia, and, in effect, at this stage as a project does not apply to the Sydney Registry, but only applies to the Parramatta Registry.  The Parramatta Registry seems to have at least as equal delays in the Family Court of Australia as does the Sydney Registry.

10. They are my Reasons and the Orders that I will make are now pronounced.

11. What follows are additional Reasons already delivered ex tempore.

12. After pronouncing the Orders, including that I was not prepared to both change residence or make an order for unsupervised time, and where it was not practicable because of the mother’s position that she will not come to Queensland and the grandmother’s position that she could not physically make the journey to Queensland, the Court turned its mind and sought submissions on a proposal that the Court initiated about the children engaging with the mother and the grandmother by electronic means.

13. Mr Richardson indicated that his client would not oppose reasonable interaction in this regard and I understand that Mr Kingston does not oppose such an order.  The mother, as the transcript will reflect, and I accept, that she is upset, indicated that it was her right to speak to her children every night for an hour.  With great respect to the mother, it is not her rights which I am here seeking to protect.  It is the rights of the children which are being affected by their mother’s decision, for the reasons she says are justified in her view, not to come to Queensland.

14. So in my view, however, notwithstanding the mother’s apparent suggestion that she will not take advantage of an order, I propose to make an order because I do not believe it is in the best interests of these children to have no contact at all with the maternal family pending a trial.  I do not regard in this case, with the conflict between these parties and the fact that the father is required, as the primary carer, to prepare these school age children for school and all of the other activities, to make an order for time every night.

15. I propose to order that the children spend time and communicate with the mother each Wednesday and each Sunday between the hours of 6.00pm and 6.30pm (Queensland time) on these conditions:

    (a)The father shall provide to the mother details of the telephone number that she should ring to commence the call;

    (b)The mother shall initiate the call at the time the call is to commence to the number provided by the father;

    (c)If it is possible, because of the technology available to each party, for the call to occur via FaceTime or other electronic means, that would be the Court’s preference;

    (d)The father shall ensure that the children are available to receive the call from the mother at the time prescribed by this Order and that the device the children use is charged and in an area where the call or contact from the mother can be activated;

    (e)All communication between the mother and the children shall not be recorded by either the father or the mother; and

    (f)The children are to have the opportunity to spend time with their mother by telephone in private.

16. I will make a further Order, on the same conditions, effectively, that the children spend time from 6.00pm to 6.30pm each alternate Saturday with the maternal grandmother on exactly the same conditions.

17. I am more than happy to make an Order that the mother, the father and the maternal grandmother shall not discuss these proceedings with the children or raise other issues of adult conflict with the children.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       8 April 2021