O’Shea and Michaels

[2011] FamCA 286

FAMILY COURT OF AUSTRALIA

O’SHEA & MICHAELS [2011] FamCA 286

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Ms O’Shea

RESPONDENT: Mr Michaels

FILE NUMBER: MLC 12669 of 2007

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I. Duffy

SOLICITOR FOR THE APPLICANT: Purcell & Purcell

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

UNTIL FURTHER ORDER IT IS ORDERED UPON THE SIGNED UNDERTAKING OF Ms S (ATTACHED)

1. That the child B born … June 2000 be placed by the Australian Federal Police on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

2. That as soon as practicable the solicitor for the mother serve a sealed copy of this order upon the Marshal of the Family Court of Australia and the proper officer of the Australian Federal Police at Melbourne AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

3. That the matter be adjourned for Final Hearing before me on 9 May 2011 and be listed as a four day matter.

4. That the Mother’s and the ICL’s costs of 18 January 2011 be reserved to the trial.

5. That the Mother’s trial material is contained in her Application, Affidavit sworn 10 January 2011, Affidavit sworn 17 January 2011 and her Case Summary and she shall have leave to file an affidavit of Mr O’Shea, and all her trial documents shall be served on the father at the email address referred to in the orders of 18 January 2011.

6. The Father file and serve all responding material including a trial affidavit by 8 April 2011 at 4 pm.

7. That the following time spent with orders shall be discharged:

   (a)Paragraphs 3 and 6(b) of the orders of 5 May 2010;

   (b)Paragraphs 3 and 6 of the orders of 1 July 2010; and

   (c)Paragraphs 8, 9 and 10 of the orders of 4 October 2010.

8. That until further order the mother shall spend time with B from 10.00am until 12.00 noon each Saturday, fully supervised by the maternal grandmother Ms S, to start and finish inside the foyer of Police Station 1 commencing on 26 February 2011.

9. That for the purpose of the previous order:

   (a)The ICL shall file with the Court an undertaking by Ms S that Ms S is prepared to fully supervise the time to be spent by B with the mother, being present with them at all times; and

   (b)The mother shall give the father notice of her intention to exercise time spent periods with B by email at the email address referred to in the orders of 18 January 2011 no later than 5.00pm on the Wednesday prior to a contact period.

10. That the ICL serve the father with a copy of these orders to his email address as soon as practicable.

11. That the ICL shall have leave to file and serve subpoenas returnable in the Subpoena List on 14 April 2011.

12. That Reasons for Judgment this day shall be transcribed and remain on the court file.

13. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel and solicitor acting as counsel.

14. Pursuant to s.65DA(2) and s62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

IT IS NOTED

1. That the father is urged to prepare his material and attend court on 9 May 2011 so that his views about B’s best interests can be taken into account before final orders are made.

2. That the maternal grandmother Ms S has signed an undertaking this day and an original shall be filed forthwith.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12669 of 2007

Ms O’Shea

Applicant

And

Mr Michaels

Respondent

REASONS FOR JUDGMENT

1. This case was due to start before me as a defended hearing on 18 January this year.  It did not go ahead.  Mr Michaels, 10 year old B’s father, and the residential parent, was overseas, and claimed that he was unaware of the hearing date.  I gave him the benefit of the doubt on that claim and adjourned the matter for mention today, making various orders to ensure that he had full notice of this hearing, and that, amongst other things, I would be asked to consider interim arrangements for the mother to spend time with B, and also the costs claimed by the lawyers for the mother and the ICL that they say were thrown away on 18 January 2011.

2. I am satisfied by the documents marked Exhibit ICL1 and M1 today that Mr Michaels was properly served and notified of today’s hearing.  I am satisfied that he did receive notification, and Exhibit M2 is a response from him to the mother’s solicitors, which is in part about issues to be raised at today’s hearing.  It is not particularly coherent, but its flavour can be gleaned from the first line, which starts:

   In regard to your letter, smartarse cunt …

   and how he signed out, which was:

   Fuck you.

   As to the question of costs, he writes:

   So, if you are seeking costs, seek them from yourself you fuckwit, because I no longer consider myself an Australian citizen.

3. And he continues from there about no longer wanting to be part of this country.

4. I read those passages only to show the tenor of the correspondence, which was not particularly clear in terms of his attitude to these proceedings, but it was clear that he knew of the proceedings, and that he knew of the costs application. 

5. This morning I received the father’s email to the Court sent late on 11 February 2011, and marked Exhibit M3.  In that, he says:

   I want this court case adjourned indefinitely until after March 2011, as the doctor has ordered me not to attend court in my mental and physical state.  In April 2011 I am going away for a holiday to spend time with my wife over the school holiday period for a rest.  Any court hearings in April will be ignored as my holiday is already booked and paid for a long time ago.  See attached medical certificate.

6. There was indeed a medical certificate attached.  It was marked Exhibit M4.  It’s from a Dr S from Medical Centre 1.  It states that Mr Michaels, of P Street, Melbourne Suburb 1, Victoria, suffered a myocardial infarction on 20 March 2010.

7. It then states in a manner that is set out quite strangely that he is unfit to attend court in December 2010, and with various dots both before that phrase and after, it states “…but should be fit by late March ’11.”  And then there are more dots on the page.

8. It is insufficient evidence to satisfy me that Mr Michaels was unable to attend Court today for medical reasons.  He has been travelling, and apparently proposes travelling again, and is supposedly caring for B.  I have no evidence from him of any constraints in terms of his lifestyle, other than this rather strange certificate.  Even if I were to feel confident that the certificate itself were valid in every respect, it is something that he would have had in his possession, one would expect, since November 2010, and it is unclear why it is simply being relied upon at this point, rather than in the period that elapsed between November and the January hearing date, or between the January hearing date and now, it only having been relied on at the eleventh hour.

9. What is clear to me from some of the material, particularly the part I have just quoted, is that Mr Michaels is capable of behaviour that is both disrespectful and ugly.  Were my role to punish a parent for acting poorly, I would be inclined to rapidly accede to the submission of the mother’s counsel and the ICL, to the effect that I should make interim orders now for substantial unsupervised time to be spent with the mother, or at least substantial time after a phasing-in period. 

10. The brief background is that B has lived with his father for several years.  In that time he has seen his mother, although not always consistently.  Since May 2010, court orders provided for the mother to have only supervised time with B.  She was not to bring him into contact with her husband, Mr O’Shea, with whom Mr Michaels has fought, and against whom Mr Michaels has an intervention order for himself and B.

11. Since May 2010, it seems that there has been some real difficulties for the mother in arranging and retaining supervisors.  One way or another, B has spent little time with her, described in the Family Report as “minimal” time, and they have seen each other only once since October 2010.  It means that this case really needs to be heard and resolved. 

12. It is, however, a complicated case.  B, it seems, is adequately cared for by his father.  B apparently suffers a mild intellectual disability, and it appears from Dr K’s report that the mother might also suffer such a disability.  The Family Report writer recommends that the mother spend unsupervised time, building to quite substantial unsupervised time with B.  The forensic psychiatrist, Dr K, recommends supervised time. Although those reports will only be part of the evidence before me, the fact that the two experts arrive at different conclusions reflects or highlights at this stage some of the complications associated with this matter. 

13. Ultimately today, counsel for the mother, and the ICL, have sought an order that B’s name be placed on the Watch List.  That was in light of Mr Michael’s letter to the solicitor that I have previously referred to, in which he indicated that he did not see this country as his home.  It is also in light of a Facebook entry, purportedly posted by Mr Michaels and attached to Ms O’Shea’s affidavit filed 17 January 2011, an affidavit that I suspect may not have been served at this point, but in any event it contains material that is important for this current purpose.  The Facebook entry that the mother refers to was in these terms, so far as relevant: 

    [Ms M] [Mr Michael’s new wife] hates Australia, and never had any plans to live there, but only wants to be with me and [B], so I need to get a passport for [B] so we can get out of the cunt of a place and live in the Philippines or some other country.

14. I am satisfied that until further order, B should not be removed from the jurisdiction.

15. The mother and the ICL have sought an order for the costs thrown away on 18 January 2011, Mr Michaels having failed to take the opportunity to explain his absence that day.  I am conscious that Ms O’Shea is in receipt of legal aid.  Mr Michaels seems not to be working, although I cannot tell the full extent of his financial situation, given that he appears to be travelling.  I have decided that I shall reserve the costs, for me to determine at the end of the trial.  The applications are not dismissed, but if it is possible I would prefer to hear argument at the end of the trial.

16. The trial will be listed before me for four days starting at 10 am on 9 May 2011.  At that point I will hear all the available evidence, and will decide the final orders.  Ms O’Shea relies on her application, filed 25 March 2010, and on her two affidavits, filed 10 January 2011 and 17 January 2011.  If they have not already been served, or either of them has not been served, they should be.

17. I am now told that there will be an affidavit filed by Mr O’Shea.  That is appropriate.  These affidavits should again be served on Mr Michaels by email, because the one certainty is that he is receiving and sending emails at the email address that was referred to in the previous order.

18. Mr Michaels has an opportunity now to file and serve his trial material one month before trial.  I am extending this additional time to him, conscious that although he should have complied with earlier orders to file material, he was then recently unrepresented.  Although he remains unrepresented, I cannot envisage any reason for a further extension in the future.

19. That leaves the difficult question of whether or not B should be spending time with his mother between now and the hearing.  As noted, there was a suggestion earlier this morning that what was sought was unsupervised time.  I indicated a high level of discomfort with that, given that it would very much pre-empt the issues about which I need to hear evidence at trial.  It may be that it is the correct result in accordance with what the mother seeks and the Family Report at this stage recommends.  It may be that there should be no time spent between B and his mother, as the father contends, or that there should be supervised time, as Dr K suggests.  I want to interfere as little as possible with existing orders when the trial is due quite soon. 

20. Although B has not seen his mother since October 2010, the orders that remain in force are my orders of 4 October 2010, which clearly kept in place the time spent with orders, whereby B was to spend every Saturday with his mother, supervised, with the mother to notify the father in advance that she would see B, and with changeovers to occur at the police station. There have been no orders since then that have changed those orders.  There has been no material filed by the father in relation to the interim orders since that last Court hearing. 

21. What has occurred is that B has spoken with the Family Report writer.  There is an indication that he would like to see his mother, or that he missed her.  Certainly there was an indication that he would just like the normality of parents who were not fighting, and the opportunity to see his mother but, I emphasise, on a regular basis.  Her consistency or lack of it, is very much an issue for me at trial.

22. Otherwise, the only factors that have intervened since the matter was before me in October is that the trial has been put back a number of months.  That could not have been envisaged by the mother when she did not press for time with B after she found it difficult in the latter parts of last year to arrange a supervisor.

23. I am satisfied that it is in B’s best interests in the short term to have the opportunity for some time at least with his mother, providing it continues to be supervised.  What has been sought is two hours each Saturday.  That is significantly less than the existing orders, but appropriate after the gap that has occurred.  I am told that the only available supervisor is Ms O’Shea’s mother, Ms S.  Apparently in the past she has been rejected as a supervisor by the father, but his not coming to Court to discuss these interim issues has left me without any current evidence against her.

24. The ICL has informed me that there are mutual intervention orders between the father and Ms S, made without evidence but in existence nevertheless.  The arrangements that are proposed would not have them being brought into contact, as changeovers would be at the police station, and therefore these orders would not be contrary to the intervention orders.

25. The ICL has offered to obtain an undertaking from Ms S to properly supervise the time.  That is something I want to discuss a little further, as to the mechanics, and I shall do that in a moment.

26. I was asked otherwise to make an alteration to paragraph 10 of the 4 October orders so that the mother could advise the father in advance of the times that she proposes spending with B, but that she could notify him by email rather than mobile telephone number.  She is not sure, or she believes that he does not have the same telephone number at present that he had previously, but again it is obvious that he receives and replies to emails.

27. I must emphasise that I have absolutely no views at this stage as to the outcome of this case at final hearing.  The one view I do have is that I would urge Mr Michaels to participate.  He is the one who is caring for B.  I have expert material to the effect that he should continue in that role, but if he has genuine concerns about the mother’s role in B’s life, he is urged to set them out so the evidence can be fully tested, and the important issue of B’s relationship with his mother can be determined in accordance with B’s best interests, whatever that outcome may be.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 15 February 2011.

Associate: 

Date:  15 February 2011