Newett & Newett (No. 7)

[2021] FamCA 573

FAMILY COURT OF AUSTRALIA

Newett & Newett (No. 7) [2021] FamCA 573

File number(s):	BRC 2179 of 2018
Judgment of:	BAUMANN J
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother for certain family members to be interviewed and upcoming family report interviews to be conducted in a particular manner – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 60CC
Number of paragraphs:	14
Date of hearing:	29 July 2021
Place:	Brisbane
Solicitor for the Applicant:	Mr S Richardson, Damien Greer Lawyers
Solicitor for the First Respondent:	Self-represented
Solicitor for the 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

AND:

MS ADLAM

Second Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 AUGUST 2021

THE COURT ORDERS:

1.That the Reasons for Judgment delivered 4 August 2021 be published to the parties electronically, without the need for an appearance before the Court.

2.That the mother’s Application in a Case filed 11 July 2021 be dismissed.

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).

REASONS FOR JUDGMENT

BAUMANN J:

1. On 19 March 2021, the parenting dispute was listed for a five day trial commencing before me on 20 September 2021.  This is the third time the parenting dispute has been listed for reasons well known to the parties.

2. The mother is unrepresented and has lost the opportunity to engage a lawyer under the s 102NA scheme (known as the “cross-examination scheme”).  The maternal grandmother, Ms Adlam, is a party in her own right and is also unrepresented.

3. As the matter approached trial, the parties were notified by Child Dispute Services (“CDS”) in Brisbane that interviews were to be conducted in Brisbane on 9 August 2021.  Family Consultant, Ms Peta Densmore, who had interviewed the parties and the children (and made observations) on 29 July 2020, prepared her first family report dated 7 August 2020.  My order for an updated report of 19 March 2021 was the catalyst for interviews being set.

4. Subsequent to the setting of interviews, the mother commenced email communication with CDS on 3 July 2021.  Exhibit 1 is some of the email exchanges, between Ms HH and the mother – revealing that:

   (a)the mother sought that interviews take place in Newcastle and extend to “their maternal family members…given their long term abduction and separation from the people they love most”;

   (b)the mother asserted that she could not enter Queensland, not for a Covid-19 reason of border restrictions, but because “my safety cannot be managed by Queensland Police as they are party to the High Court action presently before the Courts for fabrication of QPrime records, abuse of power and process to save a family law matter, two unlawful detentions in mental health facilities, perjury in the DV hearing, and failure to perform public duty, occasioning torture and psychiatric injury”;

   (c)Ms HH, in a response sent at 4.19pm on 5 July 2021 (to the mother’s request dated 3 July 2021), informed the mother, inter alia, that:

   (i)she did not have authority to travel to Newcastle to conduct face to face interviews; and

   (ii)she did not intend to talk to any persons “other than who I have already interviewed.  If I feel there is a need at the conclusion of this to speak to others I will conduct telephone or Teams interviews or organise a means to achieve this”.

5. The mother reasonably interpreted the response from Ms HH as a suggestion to bring an application, which the mother did on 11 July 2021 and was listed before me for submissions urgently on 29 July 2021.  The mother’s Application sought the following orders:

   1.That this Application be listed urgently and time for service be abridged.

   2.That this Application be heard by a Justice of the Family Court of Australia other than His Honour Justice Baumann; for reasons of Actual and Apprehended Bias and Criminal Fraud matters currently before the Appellate Court in relation to the Recusal His Honour.

   3.That the Family Report to be conducted by Ms. Peta Densmore be conducted in facilities at the Newcastle Courthouse. Note: the Maternal Grandmother and Grandfather cannot travel beyond Newcastle due to the Grandfather’s advanced Motor Neurone Disease and the Grandmother being his carer.

   4.That all Interviews and Observations be conducted In Camera, are fully transcribed, and made available in the Newcastle Courthouse Subpoena room with ‘Leave to View’ granted.

   5.That the Family Report conducted by Ms Peta Densmore, include a Parental Capacity assessment, and is conducted in separate interviews across a three day period between:

   Primary Interviews and Observations with Children (Day 1)

   a.Ms. Densmore and the Father (current residence, Gold Coast)

   b.Ms. Densmore and the Mother (current residence, Newcastle region)

   c.Ms. Densmore and each of the Children (current residence, Gold Coast)

   d.Observation of the Children with the Mother

   e.Observation of the Children with the Father

   f.Observation of the Children with their puppy, Cotton.

   Maternal Family Interviews and Observations with Children (Day 2)

   g.Ms. Densmore and the Maternal Grandparents (current residence, Newcastle region)

   h.Ms. Densmore and the Maternal Aunt, Uncle and Cousins (aged 14 and 12)

   i.Observation of the Children with the Maternal Grandparents

   j.Observation of the Children with the Maternal Aunt, Uncle and Cousins

   Paternal Family Interviews and Observations with Children (Day 3)

   Note: the Paternal Grandmother and Grandfather are divorced and should not be influenced by each other in the answering of questions. The Paternal Aunt is a psychologist and, to avoid influence and coaching, should be kept separate from both of her parents.

   k.Ms. Densmore and the Paternal Grandmother (current residence, Sydney)

   l.Ms. Densmore and the Paternal Grandfather (current residence, Sydney)

   m.Ms HH and the Paternal Aunt (current residence, Sydney)

   n.Observation of the Children with the Paternal Grandmother

   o.Observation of the Children with the Paternal Grandmother

   p.Observation of the Children with the Paternal Aunt

   6.That the Family Report contain a full Family Violence assessment per the legislation in PART IIA--FAMILY SAFETY RISK SCREENING Family Law Act 1975.

   7.That the Risk Screening (Day 4 and 5) follow appropriate processes as outlined by the Safe & Together Institute; performed in-Camera, and be conducted by a qualified consultant of the Safe and Together Institute;

   and in the alternative:

   be conducted by other qualified person trained by the Safe and Together Institute, in the Newcastle Registry of the Family Court.

   8.That a separate document be compiled in line with Family Safety Risk Screening Procedures by a qualified Family Violence and Coercive Control expert for the benefit of the Court, released to all Parties.

   9.That the Children on Day 5 each be interviewed separately by a qualified Child Psychologist as Expert Witness at the Newcastle Courthouse, by choice of, and at the cost of the Mother

   – with the interviews video-recorded and made available to the Risk Screening experts.

   10. That appropriate Security Protocols are enforced by the Court at the Newcastle Courthouse to restrain and monitor the Applicant Father whilst the Interviews with Maternal Family are being conducted; and that the Maternal Family may enter and leave the Courthouse safely.

   11.That the Maternal Family are provided with free Disability Secure Parking at the Courthouse inaccessible to Mr. Newett and his family, under the guard of Courthouse Security camera during all interviews.

   12.The timing for the Maternal Grandmother and Grandfather interviews be arranged to work around the Disability Care arrangements for the Grandfather, on advice of the Grandmother.

   13.That pursuant to s117(1) of the Family Law Act 1975 each Party bear their own costs.

   (As per original)

6. The father’s Response filed 26 July 2021 sought the mother’s Application be dismissed and also, by way of cross application, sought an order that the mother “be prohibited from filing any further Applications in proceedings BRC2179/2018 without leave o the Court”.  When the matter came before me on 29 July 2021, I indicated that the late filing of the “cross application” in the circumstances of this case persuaded me it would be unfair to deal with the cross application at this time and with a final hearing some seven weeks away.

7. I have considered the affidavits relied upon by the mother affirmed 10 July 2021 and 26 July 2021 and the affidavit of the father affirmed 23 July 2021.  I have taken into account the oral submissions made by the parties and those of the Independent Children’s Lawyer (supporting the father’s response that the mother’s Application be dismissed) and of the maternal grandmother, Ms Adlam, supporting her daughter’s application.

8. Before setting out my reasons for dismissing the mother’s Application, I do record that the mother sought I do not deal with the Application at all.  I have dimsissed on two separate occasions, the mother’s application for my recusal or disqualification from hearing any further matters.  At least the first of my decisions, dismissing the application for recusal, is listed before the Full Court in the sittings commencing 23 August 2021.  I expained to the mother that the filing of an Appeal does not operate as a stay and effectively I am not at this time bound to recuse myself – and do not do so.

9. I will dismiss the mother’s application for the following reasons:

   (a)I am not satisfied I have power to direct the use of the Court’s funding to permit Ms HH to attend the Newcastle Registry as the mother seeks;

   (b)Even if I did have the power, I would not order interviews take place in Newcastle.  Whilst I appreciate the mother and the maternal grandmother live in that region, I could not put Ms HH at risk of requiring quarantining upon return to Queensland or, for the purpose of an updated report, expend funding for her travel and accommodation.  Ms HH has the benefit of having interviewed the parents, the children and conducted observations personally for the first report.  Ms HH also interviewed Ms Adlam electronically;

   (c)If the mother and the maternal grandmother are unable to come to Queensland, for the reasons they express, then the situation is unlikely to change and they can be interviewed electronically.  This method of interview, whilst not optimal, is being adopted throughout Australia by the Court when so many people have been in forced lockdown.  In this matter, the interviews will build on the earlier personal interviews and observations conducted 12 months ago by Ms HH – which is a much different situation than if, for example, this was the first engagement between the family and the Family Consultant;

   (d)The “screening processes” to which the mother refers (arising from recent amendments to the Family Law Act 1975 (Cth)) relates to the process of initial triaging of matters in a case management pathway when a matter is first filed.

   It is not designed to be conducted during the course of a matter – and, in my assessment, particularly when a family report has already been conducted.  In this case, Ms HH in her recommendations at paragraphs 188 and 189 of her first report, identifies that it is a matter for the Court to determine whether either of the parents poses an unacceptable risk to the welfare and wellbeing of X, Y and Z.  The mother continues to believe, contrary to law, that it is a matter for Ms HH to determine risk.  That forensic determination, on all the evidence once tested, is for the Court – not a Family Consultant.

   (e)The Court rarely would direct who a Family Consultant must interview or the manner in which the interviews are to be conducted – as the mother seeks.  I am content to allow the very experienced Family Consultant to conduct the interviews with whom she regards as necessary and in a manner, perhaps electronically, that is possible.  As the mother claims to be “in exile” in New South Wales and the maternal grandmother has onerous caring responsibilities for the gravely ill maternal grandfather, it seems inevitable that at least the mother and the maternal grandmother will need to be interviewed electronically.  Considering the current lockdown restrictions in South East Queensland, it may well be that the father and children are also now to be interviewed electronically.  That ultimately is a matter for CDS;

   (f)The Court is not funded to provide individual assessments of the psychological or psychiatric status of parents or children. Nor in this case can it be justified. In so saying, I take on board the mother’s statements that when she speaks to the children (as she does twice a week) they continue to ask that they live with her or return “home” to her. Such statements are not inconsistent with statements made by the children to Ms HH in the first family report interviews (see paragraphs 95 to 111 (X); paragraphs 112 to 128 (Y) and paragraphs 129 to 141 (Z). As the children have spent no physical time with the mother or other members of the maternal family now for over seven months, their wishes (a matter to be considered under s 60CC(3)(a)) may be different or may have intensified. Ms HH will no doubt explore their wishes and feelings in the updated family report interviews.

   CONCLUSION

10. For these reasons, the mother’s application will be dismissed, including, for completeness, her application at order 7, for the engagement of the AX Centre.

11. The mother’s affidavit in reply at paragraph 30 under the heading “orders sought”, says:

    30.That the Orders sought by myself be granted (and where required for COVID considerations, the Trial, the Family Report and the Risk / Safety Screening all be adjourned until the State borders are re-opened and the Father, Children and Ms HH can travel to Newcastle).

12. Having determined that I will not direct Ms HH to travel to Newcastle, or for the father and the children to also travel to Newcastle, the issue of adjourning the trial on that basis is premature.

13. It is to be hoped that the mother and the maternal grandmother and such other persons as Ms HH wishes to interview, at her discretion, do participate electronically.  The mother’s unwavering position that she will not enter Queensland means that the situation is unlikely to change and that interviews electronically, and conducting a final hearing by Microsoft Teams, seems inevitable.  The mother is unable to activate the s 102NA cross-examination scheme and to the extent permissible by law, will be able to participate in the trial.  Whilst she will not be permitted to cross-examine the father, Counsel for the Independent Children’s Lawyer will be able to do so.  The mother can personally cross-examine the family report writer and other witnesses called by the Independent Children’s Lawyer, Mr Kingston, and other witnesses called by the father.

14. It is, as currently assessed, in the best interests of the children for the trial to proceed as scheduled.  Trial directions have been made.  An updated report by Ms HH will, I anticipate, be completed.  Again, I can only hope that the mother and the maternal grandmother participate in interviews arranged electronically, I assume, by CDS and the Family Consultant.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       4 August 2021