Olesk & Alver

[2021] FCCA 2219

FEDERAL CIRCUIT COURT OF AUSTRALIA

Olesk & Alver [2021] FCCA 2219

File number(s):	BRC 6159 of 2020
Judgment of:	JUDGE HOWARD
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – PARENTING – Interim Hearing.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 65DAA, 69ZL, Part VII
Cases cited:	In the marriage of Hall [1979] FamCA 73
Number of paragraphs:	20
Date of hearing:	17 March 2021
Place:	Brisbane
Solicitor for the Applicant:	Whitehead Crowther Lawyers
Solicitor for the Respondent:	Litigant in person
Solicitor for the Independent Children’s Lawyer:	Dooley Solicitors

ORDERS

BRC 6159 of 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MR OLESK

Applicant

AND:

MS ALVER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE HOWARD
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1.That pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001 N Company be appointed a Court expert in this matter for the purpose of valuing the real property at:

(a)B Street, Suburb C;

(b)D Street, Suburb E;

(c)F Street, Suburb E; and

(d)G Street, Suburb H.

2.That the parties be equally responsible for the payment of the cost of the fees of the expert.

3.That the parties are directed to attend, participate in and act reasonably and genuinely in mediation in respect of issues regarding property adjustment and for that reason the Court has excused their attendance at a conciliation conference pursuant to section 79(9) of the Family Law Act1975.

4.That any mediation shall be completed within four (4) months from the date of this Order.

5.That such mediation be conducted by a mediator as agreed between the parties and failing agreement as follows:

(a)that within seven (7) days of the date of these Orders, the Applicant provide a panel of three (3) experts to the Respondent, with a list of their fees, relevant experience and availability;

(b)that within a further seven (7) days, the Respondent is to select one (1) expert from the panel; and

(c)in the event the Respondent fails to choose within the specified timeframe, then the Applicant may choose.

6.That both parties produce to the other fourteen (14) days prior to the mediation, documents as prescribed in Annexure A to this Order.

7.That the parties share the cost of the mediation.

THE COURT ORDERS UNTIL FURTHER ORDER:

8.That the parties are to complete a Parenting Orders Program with J Centre, K Centre, L Centre or such other organisation that offers a similar programme.

9.That the parties within fourteen (14) days of the date of this Order contact the Parenting Orders Program Co-ordinator (or their nominee) for a program provider referred to above for intake into the program.

10.That the parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:

(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

(b)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator;

(c)if considered appropriate by the Co-ordinator:

(i)attend a Triple P parenting program or equivalent parenting program as nominated by the Program Co-ordinator;

(ii)attend an anger management counselling program as nominated by the Program Co-ordinator;

(iii)attend such drug and alcohol programs as may be nominated by the Program Co-ordinator;  or

(iv)such other program as recommended by the Program Co-ordinator.

11.That for the purposes of the program:

(a)

a copy of these Orders will be provided by the parties to the Program

Co-ordinator; and

(b)the parties are at liberty to supply to the Program Co-ordinator a copy of any Family Reports that have been prepared for these proceedings.

12.That in the event a party or a party’s lawyer has failed to comply with an obligation imposed by these Orders (or any part of these Orders) then at the callover on 13 August 2021 the Court shall consider:

(a)making a costs order against a non-complying party; and/or

(b)setting the matter down for an undefended hearing.

13.That this matter be adjourned to the Trial Callover list at 9:30am on 13 August 2021 in the Federal Circuit Court of Australia at Brisbane.

CASE SUMMARY DOCUMENT

14.That by no later than 4:00pm on 30 July 2021 and after consultation with the other parties, the Independent Children’s Lawyer is to file and serve a case summary document (maximum two (2) pages), which states as follows:

(a)the issues in dispute in both the parenting and property proceedings and the outcome sought by each party in relation to each issue;

(b)a list of assets and liabilities including values (and noting those items which are agreed);

(c)a summary of the contributions made by each party to the pool and a summary of the s.75(2) factors;

(d)the number of Affidavits to be read by each party at the trial;

(e)the number of witnesses required for cross-examination;

(f)a brief chronology of the relevant history of the matter; and

(g)the number of days required for the trial.

WITHOUT PREJUDICE FORMAL OFFERS

15.That:

(a)by no later than 4:00pm on 30 July 2021, each party shall exchange written offers setting out the terms (i.e. the parenting arrangements and the financial arrangements) upon which they are willing to settle the case without proceeding to a trial;

(b)such formal offers shall be made without prejudice and the details of such offers are not to be disclosed to the Court until after final judgment has been delivered;

(c)such formal offers shall be taken into account by the Court (along with all other relevant factors) when considering whether or not to make a costs Order (including, in an appropriate case, an Order for indemnity costs) at the conclusion of the matter;

(d)in the event that an Independent Children’s Lawyer has been appointed – that lawyer is not required to comply with paragraph 15(a) herein but shall be required (within the time stipulated in paragraph 15(a)) to provide in writing to every other party involved in the proceedings a letter setting out in broad terms the parenting arrangements which the Independent Children’s Lawyer shall be recommending to the Court.

16.That by no later than 4:00pm on 6 August 2021 each party and the Independent Children’s Lawyer shall file and serve an Affidavit confirming that they have complied with paragraph 15 of this Order (in so far as such Order relates to that party or lawyer).

WRITTEN NOTICE RELATING TO COSTS AND OUTLAYS AND RELATED ISSUES

17.That by no later than 4:00pm on 30 July 2021, the legal representatives are to provide in writing to their clients, to each other party and to the Court a written notice stating:

(a)a calculation of their costs and outlays to date;

(b)the amount of the anticipated costs and outlays to the completion of the matter (including the trial, judgment and enforcement);

(c)notification that it is the Court’s intention to consider making a costs Order (including in an appropriate case, an Order for indemnity costs) after the delivery of final judgment;

(d)notification that the Court will be considering the without prejudice formal offers when deciding what, if any, costs Order to make; and

(e)an explanation of the financial impact of a costs Order against their client.

18.That by no later than 4:00pm on 30 July 2021 the Independent Children’s Lawyer shall provide to each other party to the proceedings in writing – the amount of the anticipated costs and outlays incurred by the Independent Children’s Lawyer and/or Legal Aid Queensland (up to the time of final judgment) and a notification as to whether or not the Independent Children’s Lawyer and/or Legal Aid Queensland will be seeking to recover those costs and outlays from the parties irrespective of the outcome of the proceedings.

19.That by no later than 4:00pm on 6 August 2021 each party and the Independent Children’s Lawyer shall file and serve an Affidavit confirming that they have complied with paragraph 17 and 18 of this Order (in so far as such Orders relate to that party or lawyer).

NOTATION:

A.The matters required to be confirmed by Affidavit as ordered in paragraphs 16 and 19 herein may be included in the one (1) Affidavit to be filed within the time stipulated.

B.That if the parties are unable to settle the property proceedings on a final basis at mediation then they shall notify Chambers and the matter shall be listed for an Interim Hearing.

C.The Court will consider making an Order for an updated family report at the Trial Callover on 13 August 2021.

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 r 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE HOWARD

A.       These reasons were delivered ex tempore on 17 March 2021 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

1. The matter before the Court relates to three children. I am turning my mind primarily to the parenting aspects today. The children are X, Y and Z. They are the three children of the applicant father, Mr Olesk, and the respondent mother, Ms Alver. X was born in 2006, Y was born in 2008 and Z was born in 2013. Mr Dooley is the Independent Children’s Lawyer. The applicant father is represented by Mr Whitehead. The respondent mother is self-represented.

2. The matter came before the Court and I made a parenting order on 10 August 2020 whereby these children would spend time with their father on Saturdays from 9.00am till 5.00pm and Sundays from 9.00am till 5.00pm, and that is to occur every alternate weekend. There does not seem to be any other time, apart from the father taking one of the children to sports training on a Thursday and a match on a Saturday. The family went to see Mr M who provided a report and it is annexed to an affidavit. Of course, the Family Report writer is not in a position to resolve conflicts in evidence relating to such issues as an allegation that more than ten years ago the father may have sexually abused one of the children.

3. I am well aware that the submission by the Independent Children’s Lawyer and the submission on behalf of the father is that the evidence concerning that allegation is not strong, and they may well be right about that. I do not consider that it is appropriate for me to make a finding about it today, and I do not think I need to, in any event. I will have a lot more to say about that at a final hearing, once I have heard cross examination and had access to all the of trial material. Mr Dooley has referred to various subpoenaed documents, which he says certainly do not support any contemporaneous complaint of sexual abuse, and once again, it sounds like that is correct in terms of independent sources such as the Department of Child Safety, the police and the relevant doctor.

4. It seems the mother may have referred this allegation to the doctor or may have mentioned it to the doctor in 2017 and to the police in 2020, which, in any view of it, is a very long time after it allegedly occurred. If that were the only issue in dispute, I would be more inclined to accede to the request of the Independent Children’s Lawyer and the lawyer for the father in the making of the orders proposed by that side. But the mother says something has happened since the Family Report, and it is something significant, and the Court should take it into account and give it significant weight. The mother says the orders made 10 August 2020 should stay as they are until a final hearing.

5. The mother in her affidavit filed 4 March 2021 set out what she says happened in early 2021, and the father responded with an affidavit where he also refers to these matters. The events of early 2021 – Mr Dooley quite rightly says they should not have happened. I actually think there is a lot more to this. What worries me is the incredible lack of insight shown by the father in returning to that property. These parties separated in 2019 and there are quite significant allegations of family violence made by the mother against the father. The father also makes allegations of family violence against the mother, relating to controlling behaviour and other sorts of family violence, including physical violence. Between the parents, the father alleges the mother has perpetrated violence against him, and the mother alleges that the father has perpetrated violence against her.

6. These are matters for determination at a final hearing. But by early 2021, there can be no doubt that the father was aware of the existence of these allegations of family violence, because the mother has put them in her affidavit, apart from anything else. The decision by the father to go back to the premises and what I would describe as unilaterally move in, shows an incredible lack of insight. It would have to have been apparent to the father that the situation was going to lead to conflict. It would have had to have been apparent to the father that inserting himself back into the residence where the mother lived with the children would likely be a source of tension, worry and upset, not only for the mother, but for himself, apart from anything else, if I am to believe what he has got in his affidavit.

7. The father puts in his affidavit that he got advice about it. Now, he is not required to give any evidence about advice, and I am not going to make any comment about it, because, frankly, that is a matter for the father, what advice he gets or he does not get. The reality is that there is more than one property available to them to live in. The assertion seems to be that the ongoing effects of continual outflow of money and financial pressures led him to a conclusion it would be better to move back in there, and he could help with the children as well.

8. The mother says it has caused the children emotional upset. The mother says the children were staying in her room primarily for the four or five days that the father was there in early 2021. The mother says this was all filmed on a security camera, including, according to the mother in paragraph 12 of her affidavit, that she says the applicant father broke and forced himself into the property and the father was with a locksmith. If separated families – and whether it is a mother or a father – take it upon themselves to return to a former matrimonial home, it is pretty easy to see that there will soon be mayhem, conflict, upset and disorder. It is mind boggling the lack of insight shown.

9. The father has put his reasons in his affidavit. Even taking into account the reasons that he puts in, I cannot get past what a poor decision it was to do it. Mr Dooley agrees it was not a good idea. It should not have been done. But he says that the orders proposed should, nonetheless, be made on an interim basis. What it does do though, is it concerns the Court – it is like a red light flashing that the Court should be cautious in relation to making any further parenting order at this stage without the benefit of a full trial with the father in the witness box, the mother in the witness box, cross examination of both of them, and the Court making findings about every disputed fact.

10. I am particularly mindful of the well known comment from the case In the Marriage of Hall [1979] FamCA 73 that, “There is no magic in a family report” and the Court must have regard to not just a recommendation in a Family Report but have regard to the overall evidence. Mr M, of course, was not aware that, in early 2021, the father had gone back into the property and decided to live downstairs, and frankly, I do not know whether what the mother says is correct. The mother maintains these children were somewhat traumatised by the events. All I could say is we know that the parents have been at loggerheads as they are locked in family law litigation, and we know there has been conflict between the mother and the father.

11. So, at the very least, it seems to me undoubtedly to be correct that the children would have been uncomfortable having been placed, once again, in a household with two parents who do not want to live together, and who cannot see eye to eye, and who remain locked in conflict. At the very least, it would have been uncomfortable for the children. As to whether it led to any form of emotional upset is a matter for further evidence in the fullness of time. These reasons are being provided pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), As short form reasons in the making of an interim parenting order. I am considering making an interim parenting order. It seems to me appropriate to give short form reasons.

12. There is a lot of disputed facts and history between these parents, and the allegation of historical sexual abuse, frankly, in the context of this current interim hearing, does not loom large. It is a matter for trial and it may be the Court makes findings one way or the other. Mr Dooley has submitted that it is not a strong case and he may well be right. I have a view at an interim stage on that topic, but I have no intention of expressing it, because I do not need to, and it is better if I do not, because I will be the trial Judge.

13. Recently, the father showed an incredible lack of insight in relation to his actions. This causes me concern about jumping now to a situation where there would be five nights a fortnight, which is what is proposed by the Independent Children’s Lawyer and the father, Friday to Monday alternate weekends, then in each off week from Wednesday after school to Friday morning. Now, I must say, Mr M is a very experienced report writer, and it may well be that after a final hearing, that sort of order is completely appropriate. It may even be the case that the Court concludes that an equal time order is in the best interests of these children. What the mother and the father have to understand today is the Court’s hands, to a very large extent, are tied, at an interim stage, because the Court is not able to make findings of fact.

14. One side says something occurred in a particular way. The other side says it did not. I cannot decide – is the mother’s version correct or is the father’s version correct, until after a final hearing. Then I will make a long list of findings, what happened on each occasion, who did what, who said what. Then with all those findings having been made, I will be able to, with the benefit of the expert’s opinion, consider what orders are in the best interests of the children.

15. The Court, of course, notes s 60CC of the Act. The Court notes all of the relevant provisions of Part VII of the Act. I am well aware that maintaining a meaningful relationship between children and parents is one of the primary considerations for the Court. I am also well aware of the Court’s obligation to make findings concerning risk issues, s 60CC(2)(b) of the Act, and also for the Court to make findings in relation to allegations of family violence. I am well aware that they both seem to have well established careers. They are both highly regarded in their respective fields.

1. From what I can glean from what I have read, they both have a lot to offer the children, but the amount of conflict is worryingly high, and in particular, as I have said, and I reiterate, my view today has been persuaded by the incidents which occurred in early 2021, whereby the father went back to live in the house with the children and the mother. Apart from anything else, of course, there was already an order in place on what time this father would spend with these children. The Court made an order in August for non overnight time on alternate weekends, so that by going back to the residence, that seems to me could have been construed as a fundamental or a patent breach of the order.

2. That might be correct or it might not be, depending on whether the father was staying out of sight away, living separately downstairs. On the mother’s evidence, that is not what happened, and he was interacting with the children elsewhere. But I do not need to go into too much more detail, except to say that one obvious matter occurred to me – that you would not put yourself back in a situation in the former matrimonial home where the orders were that you spend time with the children, as outlined in the order of 10 August 2020.

3. Apart from anything else, it would, in the fullness of time, be a good idea for these children to be interviewed by a family report writer to find out and provide their views concerning being stuck in between their parents, and with the father going back into the house. I note the children were quite shocked about the separation of their parents. Y has said he wants to spend more time with his father. It is noted in paragraph 75 the Family Report writer has written it as “alleges”, but Y says that the father constantly makes negative remarks about the mother and asks questions that are more about finding fuel for the conflict. Essentially, the view of the report writer is the boy feels caught in the middle.

4. The father needs to make sure that he avoids talking to the children about anything negative about their mother. All of the children stated to the Family Report writer their memories of the past fighting at home and the arguing at home. “Without them both in the house, it’s less noisy” says the youngest child at paragraph 89 and “it’s much better and more quiet. Living together was not the best”. The youngest actually says, in paragraph 90, she did not “really want to sleep” at Dad’s. The children’s views in relation to the level of conflict in the family home when they were all together reinforces in my own mind the unpleasant experience the children must have suffered in early 2021 when the father went back to the family home. In circumstances where there is another property at Suburb H, it does not matter one jot to the Court that the father thought the mother had said she was going to move to Suburb H.

5. The mother was in the former matrimonial home, the Suburb C property. The Suburb H property, it seems, was available for the father, but he chose to insert himself back at the Suburb C property. It confirms in my own mind the correctness of this interim decision to take a cautious approach. In the best interests of these children, I do not propose increasing their time with their father at this stage. However, after a final hearing, it might be very different. I am not proposing going through the various other subsections of s 60CC of the Act. I have touched on many of them. I do not need to go into s 65DAA of the Act. The evidence does not support a making of an equal time order, and in view of what happened in early 2021, I am not inclined to make an order for substantial and significant time either at this stage.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Howard.

Associate:

Dated:       8 July 2024