Payne & East
[2022] FedCFamC2F 976
Federal Circuit and Family Court of Australia
(DIVISION 2)
Payne & East [2022] FedCFamC2F 976
File number(s): MLC 2364 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 July 2022 Catchwords: FAMILY LAW – interim parenting orders – ex tempore judgment – father in prison – high risk of family violence – extant “final” orders discharged in interim orders made – no time with father until further order – section 102NA applies. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 9ZL, 69ZW, 102NA. Cases cited: Eaby & Speelman (2015) FLC 93-654.
Goode v Goode (2007) 36 Fam LR 422.
Division: Division 2 Family Law Number of paragraphs: 34 Date of hearing: 6 July 2022 Place: Melbourne Counsel for the Applicant: Ms A. Pearson Solicitor for the Applicant: Aberdeen Lawyers The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Hartleys Lawyers ORDERS
MLC 2364 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAYNE
Applicant
AND: MR EAST
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
Interim parenting orders
1.That the Parenting Orders made on 2 September 2021 be discharged.
2.That until further Order, the Mother, Ms Payne (‘the Mother’), have sole parental responsibility for the children X born in 2015 and Y born in 2017 (‘the children’).
3.That the children live with the Mother.
4.That until further Order, the Father be restrained from spending time or communicating with the children.
5.That the Mother be excused from providing her and the children’s current and future address and contact details to the Father with such details to remain confidential.
6.That the parties have liberty to apply for the parents and the children to attend upon a Court appointed Child Expert for the purpose of preparation of a full Family Report if they deem it necessary for the progression of this matter.
7.That the Independent Children’s Lawyer do all acts and things to cause and arrange for the Father to be psychiatrically assessed by an expert psychiatrist (‘the Psychiatrist’), AND IT IS REQUESTED that such assessment be funded by Victoria Legal Aid in the first instance.
8.That the parties provide the Psychiatrist who is assessing the Father pursuant to the previous Order copies of the:
(a)the Department of Families, Fairness and Housing s69ZW Report dated 22 June (in redacted form described in these orders); and
(b)the Child Impact Report dated 21 June 2022 (in redacted form described in these orders);
(c)such items in the subpoenaed material (to be provided in a paginated form) as are deemed relevant by the Independent Children’s Lawyer in consultation with the parties; and
(d)Affidavits of Ms Payne dated 9 May 2022 and 10 June 2022; and
(e)Affidavit of Mr East dated 23 April 2021 and any other affidavit filed by him; and
(f)Affidavit of Ms B dated 27 August 2021.
(g)A copy of these orders.
9.That the ICL provide the documents described in the preceding order to the relevant officer of DFFH.
10.That the Mother be excused from participating in Family Dispute Resolution.
11.That the Father, his agents and/or nominees be and are hereby restrained from:
(a)Abusing, insulting, belittling, intimidating, harassing or otherwise denigrating the Mother including by text message, email or sending offensive material to the Mother; and
(b)Communicating with the Mother, the children, any relative of the Mother and or associate of the Mother except through the Mother’s solicitor in these proceedings provided the Mother is legally represented;
(c)Providing, by any means including electronically, any affidavit, report (including any report provided by the Department of Families, Fairness and Housing (‘DFFH’), child inclusive memorandum or family report prepared or used in these proceedings, and/or any note or copy or identifying details thereof, to any person, save for an Australian Legal Practitioner providing legal advice in these proceedings and to a psychologist, psychiatrist or general practitioner for the purpose of therapy for the Father, without the permission of the court.
12.That the Mother, her agents and/or nominees be and are hereby restrained from:
(a)Abusing, insulting, belittling, intimidating, harassing or otherwise denigrating the Father to and/or within the hearing of the children;
(b)Discussing any evidence filed in relation to these proceedings to and/or within the hearing of the children; and
(c)Knowingly allowing the children to have access to any documents procured in relation to these proceedings.
13.That the Mother has leave to make an application to proceed on an undefended basis in the event that the Father does not file documents in accordance with these orders.
Parenting - other
14.Pursuant to Rule 8.11(5)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, copies of the child impact addendum report dated 1 July 2022 may be given to:
(a)the lawyers for the parties; and/or
(b)the lawyer representing the children in the proceedings under s68L of the Family Law Act 1975; and
(c)An authority established by or under a law of a State or Territory for the purposes including the provision of legal assistance; and
(d)a children's court (however described) of a State or Territory; and
(e)a prescribed child welfare authority; and
(f)a Victorian Police Officer who is either investigating or prosecuting an allegation of breach of a family violence order by the Father; and
(g)the convenor of any legal dispute resolution conference.
15.Except with the Court's permission, no person is to release the addendum report, or provide access to the report, to any person other than those mentioned in paragraphs (a), (b), (c), (d), (e), (f) or (g) of the previous order.
16.That the Independent Children’s Lawyer forthwith provide by email to the Father and by email and ordinary post to the Father care of his lawyers retained in criminal proceedings, the following documents within seven (7) days of these interim orders on condition that the Father only uses these documents for the purposes of this proceeding and subject to the injunctions made in these orders:
(a)the DFFH s69ZW Report dated 22 June as redacted in the form provided by the court; and
(b)the Child Impact Report dated 21 June 2022 as redacted in the form provided by the court; and
(c)the Child Import Report Addendum dated 1 July 2022 as redacted in the form provided by the court;
(d)A copy of these orders
17.That the Mother be permitted to provide a copy of these Orders to any child care/kindergarten/school which the children attend, the Victorian police and or any medical or allied health practitioner treating the children.
18.That the Court Child Expert is requested to contact the Father for the purpose of completing the Child Impact Report dated 21 June 2022, whether in person of electronically, and if the Family Consultant deems it appropriate after speaking with the Father, the Family Consultant is requested to interview the children.
19.Pursuant to section 69ZW of the Family Law Act 1975 is it requested the Department of Families, Fairness and Housing (“DFFH”) provide to the Court an update to its s69ZW Report dated 22 June 2022 or a further report 30 days prior to the final hearing (Tuesday 21 March 2023):
20.Pursuant to Section 65DA(2) and s.62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and the 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.
Interim property hearing orders
21.That regarding the property at C Street, Suburb D:
(a)60 days prior to the trial date, the parents to all things necessary obtain an updated valuation of the property from the firm known as Company E, the cost of such valuation to be paid initially by the Mother and adjusted at a final settlement.
(b)In the event that the Father fails to facilitate entry to the C Street, Suburb D property when requested to, the valuer be permitted to revalue the property based on the criteria listed in the valuation report dated 24 August 2021;
22.That 60 days prior to the trial date, the parties exchange their most recent superannuation statements and provide to the other party, a current screenshot of their superannuation entitlements.
23.That within 60 days (or 90 days if he remains in custody), the Father provide the following disclosure to the Mother’s solicitor by email, to the extent such documents are in his power or possession:
(a)Bank of Melbourne Commercial overdraft account statements in his name from 1 January 2019 to 5 June 2020 and 6 June 2021 to current date.
(b)Bank of Melbourne Complete Freedom account statements in his name from 1 January 2019 to 22 June 2020, 23 December 2020 to 16 February 2021 and 18 June 2021 to current date.
(c)Bank F transaction account statements in his name from 1 January 2019 to 30 September 2019, 1 July 2020 to 30 September 2020 and 1 April 2021 to current date.
(d)bank statements, if he has any in his power or possession, or other document in his power or possession, showing the receipt of the alleged $100,000 inheritance and evidence of how the inheritance was applied.
(e)bank statements for the Bank F Home Loan account in his name from 1 January 2019 to 15 December 2019 and 15 March 2021 to current date;
(f)purchase contract and mortgage document for the Suburb G property held at the commencement of the relationship, from the commencement of the relationship to the date the property was sold;
(g)Purchase contract for the C Street, Suburb D property;
(h)Mortgage statements for the C Street, Suburb D property from the time of his purchase to current date;
(i)His tax returns (individual and company) and financial statements for the years ended 2019, 2021 and 2022 once lodged.
(j)Evidence of the amount currently outstanding on the Motor Vehicle 1;
(k)Details of all assets owned by Company H and their estimated value; and
(l)Evidence of the superannuation balance held by the Father at the commencement of the relationship.
(m)Such other documents or information necessary for him to comply with his duty of disclosure of all relevant financial information and documents to the Mother and to the court.
24.That within 30 days, the Mother provide the following disclosure to the Father or Father’s legal representative if appointed by email:
(a)Evidence of the superannuation balance held by the Mother at the commencement of the relationship; and
(b)Tax returns for year ended 2022; and
(c)Such other documents or information necessary for her to comply with her duty of disclosure of all relevant financial information and documents to the Father and to the court.
Trial directions
25.The proceedings be adjourned to Thursday 20 April 2023 at 10.00am for Final Hearing (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia at Melbourne.
26.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
27.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
28.No later than 56 days prior to the trial date, Thursday 23 February 2023, the Mother file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
29.No later than 28 days prior to the trial date, Thursday 23 March 2023, the Father file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
30.No later than 7 days prior to the trial date, Thursday 13 April 2023:
(a)the Mother file and serve any affidavit(s) in reply addressing only the evidence presented in the Father’s affidavits; and
(b)the Independent Children’s Lawyer file and serve any affidavits relied upon.
31.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
(d)in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
·the assets and liabilities available for division;
·the value of items where the value is in dispute;
·contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
·relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
·any further factors relevant to determining a ‘just and equitable’ division of property.
32.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
33.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
34.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge’s working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness’ own affidavit.
35.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
36.The Mother has leave to rely on the following documents for the purposes of her material she intends to rely upon at the final hearing of this matter:
(a)her affidavits dated 9 May 2022 and 10 June 2022;
(b)her affidavit dated 4 March 2021 in respect to property matters only; and
(c)any updated affidavit the mother files in these proceeding.
37.That the Father has liberty to make an application for interim orders to spend time with the children by filing an application in a case supported by an affidavit.
Section 102NA
38.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iii) and (iv) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the parents are not permitted to personally cross examine each other in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the cross-examination scheme.
39.The Father do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
AND THE COURT NOTES THAT:
A.The Department of Families, Fairness and Housing appeared amicus curiae at this hearing.
B.It appeared to the Court that the Father was in custody at the time of this hearing and the Court has provided to the parties a redacted a copy of;
·the DFFH sec 69ZW report dated 22 June 2022, and
·the Child Impact Report dated 21 June 2022, and
·the addendum to the child impact report dated 1 July 2022.
for the purpose of those documents being provided to the Father and so that the identification of the authors of those documents is redacted.
C.At the Court’s request the Mother’s lawyers contacted the Father’s lawyers acting in his criminal proceedings the day prior to this hearing and requested they remind the father of this hearing.
D.Pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the Court may vary or set aside a judgment or order made in the absence of a party.
E.At the date on which a copy of the Child Impact Addendum Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or, if admitted, would only form one part of the evidence in the proceedings.
F.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
G.The information produced in the 69ZW report dated 22 June 2022 is confidential and cannot be disclosed to any other person without an order of this Court.
H.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 if the information is disseminated other than as ordered in these proceedings.
I.The relevant application referred to in order 39 hereof is available to the parties at to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
K.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
L.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
M.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
N.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 Payne & East has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) delivered ex tempore. These reasons have been settled for grammatical clarity and references to evidence and legal authorities.
This hearing involves a parenting dispute between Ms Payne (‘the Mother’) and Mr East (‘the Father’) involving their two children born in 2015 (‘child 1’) and 2017 (‘child 2’) (collectively, ‘the children’). The hearing is electronic over Microsoft Teams. The Father did not appear, the Mother appeared by counsel, the Independent Children’s Lawyer (‘ICL’) herself appeared and the Department of Families, Fairness and Housing (‘DFFH’) appeared amicus curiae.
The background to the matter is that on 2 September 2021 the parties made final parenting orders that provided for equal-shared parental responsibility and shared care. At that time the parties and the Court had before it a glowing report from the Father's psychologist who recited the Father’s diligent attendance over 17 sessions and his preparedness to attend a Men's Behavioural Change program. I infer that it was in that context that the final orders were made. Soon after, on the evidence that I have on this interim hearing, things deteriorated.
I apply the principles of paragraphs 72 and 82 of Goode v Goode (2007) 36 Fam LR 422, being:
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
I also apply the principles in Eaby & Speelman (2015) FLC 93-654 paragraph 18, a 2015 Full Court case, which is to the effect that even if evidence is contested or denied on an interim hearing I cannot ignore it:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
This is the second return of the matter in the current wave of parenting applications. The first return was on 11 May 2022 and orders were made as follows:
1.The Respondent file and serve a Response to the Amended Initiating Application filed by the Applicant on 9 May 2022 by no later than 4.00pm on 25 May 2022.
2.The Respondent file and serve an affidavit in response to the affidavit filed by the Applicant on 9 May 2022 by no later than 4.00pm on 25 May 2022.
3.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the children:
(a) [Child 1]; and
(b) [Child 2].
4.Victoria Legal Aid is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
5. The Court advise Victoria Legal Aid of this order forthwith.
6.Each party make available to the Independent Children’s Lawyer within 7 days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
7.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party or subject to rules on issuing subpoenas. The Independent Children’s Lawyer be granted leave to issue up to 10 subpoenas.
8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and [child 1] and [child 2] are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 16 June 2022 with:
(a) the Applicant to attend at 9.00am; and
(b) the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne registry on the morning of 23 June 2022. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
9.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
10.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11.Not later than 4.00 pm on 18 May 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.Pursuant to order 8 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the children.
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
13.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
14.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents.
15.Pursuant to section 69ZW of the Family Law Act 1975 (Cth) is it requested that the Department of Families, Fairness and Housing (the Department) provide to the Court by 4.00 pm on 1 June 2022 the following documents and information:
(a)any notifications to the Department of suspected abuse of or of suspected family violence affecting:
i. [child 1]; and
ii. [child 2]
(the Children), including but not limited to any intake reports;
(b)any assessments or investigations of the Department into notifications of the kind referred to in subparagraph (a) of this order and any findings or outcomes of such investigations, including but not limited to copies of investigation and assessment outcomes, any grounds of substantiation, case plans and case closure summaries; and
(c)any reports commissioned by the Department in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Victorian Children’s’ Court; and
(d)In the event the Department have an ongoing investigation in relation to the Children to whom the proceedings relate, any recommendations for the future arrangements of the Children taking into account the Orders sought by the parties in these proceedings.
16.The parties be restrained from issuing any subsequent subpoena to the Department seeking documents that have otherwise been produced pursuant to these Orders, except with the leave of the Court.
17.By 4:00pm on 1 July 2022 each party and the Independent Children’s Lawyer will file and serve a Case Outline which includes the following:
(a)a list of the documents the party intends to rely upon;
(b)a brief chronology;
(c)a list of the issues remaining in dispute;
(d)an outline of contentions with respect to:
(i)each of the considerations relevant to determining the best interests of the child (s.60CC factors);
(ii)whether the presumption of equal shared responsibility applies (s.61DA);
(iii)the considerations relevant to equal time and substantial and significant time (s.65DAA);
(iv)any other matters relevant to the Court’s consideration of parenting issues, including submissions as to why the Court should vary or set aside the Final Parenting Orders made on 2 September 2021; and
(e)a draft minute of the precise Interim Orders sought by that party.
18.The matter be adjourned for an Interim Defended Hearing in relation to parenting matters on 6 July 2022 at 10.00am.
19.The parties have liberty to apply.
AND THE COURT NOTES THAT:
A.Parenting Orders made on 2 September 2021 remain in full force and effect and the Court reminded the parties of their obligation to comply with those orders, in particular the injunctions and obligations regarding the parties’ behaviour.
B.Further directions in relation to the property aspects of the Application will be made at the Interim Hearing on 6 July 2022.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
G.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(i)the filing of documents;
(ii)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(iii)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
H.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the Hearing date.
These settled reasons recite parts of the evidence that was merely referred to but not recited ex tempore. The below paragraphs are from the Mother’s 9 May 2022 affidavit and self-evidently demonstrate family violence and the burden it must be to the Mother and her family:
11. [The Father] has mocked up a website/[J] page with 49 fabricated friends (and only 1 of my real friends) all of which were scantily dressed with the heading: [the Mother] is a Vile (slut) implying that I was prostituting myself on the internet. He also posted naked photos of me on a public corporate network (LinkedIn) trying to shame me before my workplace and have me lose my job…
12. He has sent himself threatening emails, pretending to be me, and then reported these to the police. He has exaggerated threats that a friend made to him without my knowledge, in an attempt to make him stop the harassment.
13. He has made 1 cent deposits through my bank account, each with a threatening or vile subject text on it, such as
a) A father being d Disgusting behaviour
b) A father being denied access to his You owe me back pay Centrelink info Centrelink fraud 02 April 2022
c) A father being denied access to his Every single day this is what you w a DAILY REMIDER U Ra BAD MUM 26 Mar 2022
d) You are a dog I hate you Nothing but a rat …
14.He also physically assaulted my father at changeover in December 2021 by punching him in the chest with his elbow and then speeding off in his car. He has been charged with his assault.
…
33. On 18 March 2022 at 7.19pm I received a 2-page email again purporting to be from [the Father’s] former girlfriend [[Ms K]] (signed [K]). Excerpts were as follows:
a) Pretty exposed corner you live on there at [the Mother’s street address]. The difference there is honey and I'm allowed to quote your address as I'm not threatening. I was also on your parenting order as a trusted person approved by you! I was to be the supervisor for [the Father] around your children. I'm a trained Nanny with up to year 7 elementary school qualifications......Oh Yeha I have no criminal history either. Let's just say [the Father] and I are model citizens in the eyes of the law and community.
…
[Paragraphs 33 b), c), d) and e) recite foul, explicitly sexualised, misogynistic and strongly aggressive language used by the Father and it is unnecessary to repeat them in these reasons]
…
35. On 19 March 2022 my Father received an 11 screen text message. Excerpts from the messages were as follows:
a) Dear [maternal grandfather] Listen up very clearly and take this as a gesture of goodwill. I'm prepared to reason with you and give you the opportunity 1 final time. There's no point any more! It's over. I'll take you all out 1 by 1 if I have to. One way or another.
…
c) It's gotten very serious. This isn't a joke any more, [maternal grandfather]. The capabilitites that could potentially wreak havoc on your family is and will be devastating. I will fucking destroy you personally and I will ruin your daughter's life for what she has done to me. Imagine if you were in my shoes and some fucking prick got in between your family. Especially if you were innocent and everyone turned their back on you. Betrayal is the worst feeling. The feeling of worthlessness with nothing else to live for. Truly don't give a fuck about anyone or anything anymore. I will keep going like a robot [maternal grandfather]. you will need to fucking kill me, I swear I will destroy her career. I will shame her. I will make sure your family's name is dirt as well as destroy your business and take everything from you…just like everything has been taken from me.
d)Don't even think for 1 min this is a fucking joke. I'm not a violent man [maternal grandfather]. But I'll get you were it hurts over the next 20 years. Then I'll piss on your grave once you die of a heart attack because you worked your whole life for nothing.
…
38. On 26 March 2022at 12.14pm I wrote to the Respondent and told him that due to his intense domestic abuse this week, I was not comfortable sending the children to stay with him and that until I felt that he was mentally stable enough and complying with his medication, I was not going to permit the children to spend time with him.
…
40. On 26 March 2022 at 2.39pm I received an email from the Respondent with the following subject heading: You think I'm the violent one and mental? Didn't you basically order someone to kill me? (this was fabricated). Some excerpts from the email were as follows:
a) ... You fucking deserved everything last week! I mean every single thing I say to you! Your are a awful mother! You seriously have no clue! Your selfish and your just have no good intentions. It's disgusting. It means so much to you this image thing doesn't it. Too bad everyone's laughing at you behind your back.
b) You invested so much into this to purely try to hurt me. You so far upyourself it makes your health suffers that's why your always sick. I would never ever do anything like that to you! Never! You're the maitre of my children ffs [for fucks sake].
c) Well I hope you realised You are completely screwed! You have fucked up big time. You know it! The legal system will eat u alive. U already know I'II get ya stupid letter by Monday! 2 seconds! Then what are you going to do?! Because i'm now going to fight You for the kids. I hope u know that, I will win. I hope you know that! If I don't good luck. Your life is going to be shit from now on! Hahaha
d) Your parents are going to need to spend $100,000. There tired as there in their 69s about to retire. Give yourself a pat on the back [the Mother]. Good one. So Selfish. Cant just let it go can you! That's ok. Enjoy your time with the kids this weekend. I'll get my time. My mission then will be to make you pay for the damage you have done! You up for that are you? Remember everything that u do to me your going have done back. Ok.
e) Seriously don't kidnap my kids and use mental health. This type of shit is what's causes anyone's mental health to decline. How could you do this!
f) You keep doing this shit to me [the Mother] you will pay for this one way or another. When you least expect it! Just remember what goes around comes around.
g)Anyone would agree that you are a scum bag if you continue to withhold someone’s kids from them. You know how much the mean to me. It's a dog act! Desperate attempt to get to ur own way! [child 1] (my 6 year old daughter) already knows that you're a bitch!....She's going to hate you! I'm going to back her! I'll make sure your not even at your own daughter's wedding! Mark my word! I'll make you pay dearly for this. Pure and simple!
…
45. On 29 March 2022 at 7.47pm I received an email from the Respondent (purporting to be 'an insider who dislikes women who deliberately revoke men from seeing their children') with a subject heading 'Why are you not letting [the Father] talk to his kids? What's up [the Mother]? with the following excerpts:
a) This has nothing to do with your relationship or the fact you don't like [the Father]. Who cares [the Mother]. He Hasn't hurt them. He's a good dad and his mental health is perfect. Why are you trying to break him? Do you think doing this is going to grant you any favours?
b) Do you want your forever life to be miserable hahahah I think you do. You must. Lol you just what [wait] and see what's installed for you. Hehehehehehejheejjejeehe
c) You are in the wrong this time missy! This is just a cowards move. Leave the god dam kids out of it. How disrespectful to your own children.
d) Wrong move. Hope you have a great day at work tomorrow :) :)…
46. On 1 April 2022 at 8.33pm I received an email with the subject heading "Why u ignoring me [the Mother]? Wtf is going on? What do I want? Why can't you face Me? I haven 't heard from anyone…not 1 single person" Excerpts from the email were as follows:
a) ? I'm coming to see you [the Mother]. Whether you like it or not. If you want to cause drama and ring the cops that's up to you. They can arrest me in front of my kids for just wanting to say hello. Which they wont ... they will just kindly ask me to move along.
b) We are going to talk about us and why we are like this to each other. You're cut as still for reasons from years and years ago. You're not over it! Don't bullshit! And we need to get to the bottom of it….. you're not scared of me. So stop talking rubbish. I've never hurt u in my life. So just cut it! I'm coming to see you this weekend.
c) U wanna label me as mentally unwell, pretty much just gave me a green light didn't you!! I can do what I want and not be charged. Everything u try and do to me. Just gives me more over! Stop trying to over step me. Don't let me warm up. Trust me. Wrong person. You want to be on my team. Not against me. Didn't you call the cops! Do you think iv heard from them yet? Noooo. They darn give a fuck! seriously!!
d) Surely by now you realise it's not ending. Your Dad obviously do[n’t] even care about you. Just interested in his own battle now. Fuck he's been to the police station more times to try get me charged than he has his grandkids birthdays ahahahahhaa what a stupid old cunt!! That's your Dad. Lol I have sat there and told people face to face. I'm not going anvwhere. I mean ANYWHERE. You move states and take my kids..i move states and rent the House next door.
e) I'm not joking!!! Any man that comes near you and my kids. I'll take out. You wanna label me a psycho. Sure I can pretend to be Psycho. I'm not lieing when I say ill make your life miserable! Try me! Hate to use a bit of persuasion but that's your style and If I don't you will Shit all over me.
f) It's not going to get better. If I can't randomly just call in to give my kids a hug or go to school because it's not "planned" no no no no no no, no fucking way. My family isn 't going to go through that! Ok. We are not! Option A or Option A. …
47. On 2 April 2022 at 9.25am I received an email with the following subject heading and no content: Don't worry be getting in contact with ya long lost sister next. I'll get you where it hurts. You wanna play these games do you bring my kids to me by tonight I mean it.
…
52. On the evening of Friday 8 April 2022 despite everything that had happened and with much reluctance, I made the children available to the Respondent for the mid-term school holidays. He had sent me a very polite email on 5 April… before he was to collect them, saying that his parents were looking forward to spend time with the children. I was exhausted and could not handle the likelihood that my parents and I would be bombarded with threats, abuse and allegations as we had last time I withheld the children, so I complied with the orders and delivered the children to him.
53. On Thursday 7 April 2022 I received an email from the Respondent with the subject heading: "I'm still waiting for a explanation in the past events to. It's not acceptable please don't ignore me with my genuine concerns". Excerpts from the email were as follows:
a) Referring to my query on why he was trying to hack into my Apple ID account: Maybe it was a warning who knows? I'm not the computer man. My accounts have all been hacked. Everyone. There's no proof I sent anything. Regardless of whose email and phone number. Do you know how easy it is to hide that or pretend to mimic someone number. Apparently very very easy according to the IT experts. Iv[e] made inquiries. Put it this way. My passwords are not far2easy anymore like it used to be. I only just changed them last week.
b) I would really like to have a talk. I really would. We need to desperately [the Mother]. It can't go on. Also why have you filed for an ivo? Why do you want the kids on it? Explain that.
54. On Friday 8 April 2022 the Respondent sent me an email with the following subject heading: Answer me? What's the story. Excerpts from the email were as follows:
a) It's not effective yet btw. It has not been served! So you got 1 last opportunity to be honest with me. Are the kids names on it. Yes or no.
55. On Monday 11 April 2022, the Respondent refused to return the children to my care pursuant to the final parenting orders made.
56. On 11 April 2022 at around 12pm I sent him text and email request asking him to do the right thing and return the children so that I didn't have to get the authorities involved.
57. On 11 April 2022 at 12.46pm the respondent sent me a 4 screen text message with the following excerpts:
a).... While there's orders in place against me and applications and pending breaches plus deliberately ignoring me when asked about safety! No! Sorry [the Mother] how rude..I’ll be hanging onto them as I know they are safe.
b)[Child 1] is enrolled at a new school. …
58. On 11 April 2022 at 1.03pm after the Respondent overheld the children during my for 4 days, he sent me and my mother a 7-page email with the subject heading: "Ok then I'm left with no choice now. I won't allow my children to be in your care any longer until further notice".
Excerpts from the email were as follows:
a) ''They need to keep the hell away! I don't want to see your mother or father anywhere near our pick or drop off spot in future. That's there problem for filing ivo's….it's intimidation having them there and it makes me anxious. I'll cc them in this email so they are on the Same page and have an Official warning themselves!! DO NOT COME to [the Mother] and [the Father’s] pick up SPOT."
b) "So just like your father got his warning. And good. I Haven't seen him since. Father of the year better not make another appearance. This is our thing no one elses ... this why it's dragging on."
c) "I'm not like your father [the Mother]. That's full of promises and bullshit! That's what you call a gunna man. Well I'm a do man! I will do what I say I will Do. That 's why you people are freakin mad. Got some nerve battling me against all this stuff. I just hope your ready and you got the time. energy and funds."
d) "The souls (sole) purpose of this email is to inform you that I'm taking responsibility of our children's needs until further notice. They are not safe with you [the Mother]. I don 't trust you.
e) Iv since spoken to the police and school and I have done everything right. Your allegations of emails and naked pictures or whatever you wanna call it is rubbish. Is not the polices concern anyway and they won't help you. there's no proof they can't look in to it! There's no budget! As if they going to waste there time on that??
f) Only your mate was silly enough to actually say he wanted to kill me in a voice mail 3 times from his phone number. What a fool! I'm not finished with him yet either. He'll be going back in for another holiday soon. You watch Don't underestimate me: worst mistake. I might not look like much in the outside. I taught you everything u know [the Mother]. Regardless That could have been anyone texting and emailing. Signing wfrom [the Mother] or from [the Father]. big deal!' It's too easy to make it look like someone else. They rely in confessions [the Mother]. I make no comments in interviews and direct all their questions into word format and we then reply in writing within 60 days. I don't talk.
g) I won't let my kids out of my sight ever again. I also will not stay away from there place of residence while there in your care; I can't walk up to them in the street? Or drive past your house or drop in to give my son a high 5 or kick the footy ? Go fuck yourself! You do you think you are? Ofcourse I'm gong to do that. I'm there Dad. That's what dads do. You will never ever stop me.
h)You are extremely lucky you did the right think this week. If you promised our kids and let them down again like last time, saying they can see me then not at the mast min, I swear to god it would’ve been the cherry on top! You don’t want the cherry. Trust me.
i) I'm informing you I will not be returning the children on Monday Ive already made an immediately application for child abuse and neglect against you. I also have videos of [the children] telling me things in question, Plus screenshots and your own personal videos from all the different social platforms.
j) If you would like to see or talk to your children you have 3 options. You talk to me like an adult and give me reassurance and explain to me what the hell is going on? I may consider supervised visits or Face Time once your mental state of clear and your have a negative result for drugs. OR you apply to the courts and take a number and let them decide. Could be months. You won't win. Not after what's happened. …
59. On Sunday 24 April 2022 after the Respondent had overheld the children for 6 days during my time under the orders, and I had spent 6 days defending myself to DHHS and 4 days speaking to police about the Respondent being in breach IVO and not returning the children and making threats, the police arrested the Respondent for breach of the intervention order and told me that I could collect my children. I do not know why, but the Police released him the same day. The arrest made no difference to the Respondent's behaviour at all. The abuse and threatening emails and messages continued, just HOURS after he was released.
…
63. On Wednesday 27 April 2022 just 3 days after the Respondent was arrested, my father and mother received another email with the subject heading "Oh that's right [maternal grandfather]. Catching up with your other daughter in a couple of week! Can't we had a good chat the other day. 6 hours on the phone. You 're a real piece of shit aint you [maternal grandfather]!! Don't worry I'm helping her gets some legal advice! We coming form all." Excerpts from the email were as follows:
a) Cops came back tonight. Sergeant came. Turns out they were wrong. I'll be escorted to the primary school tomorrow to pick up my kids. The fat that "police made the DHHS report not me. Speaks for itself!!
b) You do the maths you stupid fucking cunt! Try me! I'll be out within the hour again! I have everyone on the inside. you have No one. No friends no family no one!!
c) You are going to have sleeping one eve open from now on! Don't think I'm ioking!! Have I liked yet?! Everything single things I say I'm going to do. I do x
d) Again. I'm coming for you [maternal grandfather]! I'm coming for your wife. Your daughter your son and your father....better be on guard. U just never know!
The Mother then outlines additional events that occurred afterwards, and particularly after the 11 May 2022 hearing, in her affidavit filed 10 June 2022:
6. I am very concerned about the children's safety, psychological wellbeing and welfare whilst in the father's care due to his ongoing abusive behaviour. The father told me via text on 12 May at 8:54am, "....I really just don't understand why you all keep fucking me over with something so simple. About me being a father and being around my kids and fighting for my right to do so! No wonder there are so many women being killed and so many men committing suicide. It’s a circle the end result is not good for anyone....." Pg 14.
7. On 12 May 2022 at 7:59pm the father sent me another text stating that regardless of any court Order he "would always tell [child 1] the truth and she already knew I was an evil, cold mean person and it was all my doing. The Father also told me the "cops are crying" and he would tell [child 1] everything, anytime and he would never lie to her”. The Father then told me go tell my lawyer and said "... Ooops I breached again!" Breach me! Then you all go down for the illegal kidnapping the other week! You know that was totally illegal and fucked up! Vicpol are shitting them self I'm running this show now! Don't' fucking forget that!. Guess what! Kids straight back to me! Instantly dodo seriously do it! The longer you fuck me around [the Mother]! The worse and worse your life is going to Be! Pay back is not a bitch it's an absolute fucking cunt! Pg 15 & 16.
…
10. [child 1] also told my mother (the maternal grandmother) that the Father had told her he was giving her ([child ]) his house.
11. The father lacks insight into his abusive behaviour, has no remorse and refuses to take any responsibility for the impact this has had, and is having upon me, the children, and my family. The Father persecutes me and invades my life on an almost daily basis. He bombards me, my parents and my lawyers with threatening and abusive emails and texts. The father takes every opportunity to gaslight me, attempts to exercise coercive control, belittles me by calling me horrible derogatory names and has fabricated vengeful and malicious lies about me to DHHS, the children's school and my employer, placing my employment at risk.
…
Father's Disregard for Police, the law and Court Orders
13. The father believes he is untouchable and can manipulate the police, the law, and the Court system. The father boasted to me via email on 21 May 2022 at 6:06pm that "he is suing the police for $6,000,000 and that "..they are fucked and know it ". The Father also made threats about suing my family and told me ".... it's serious now I'm going for the lot you. Iv taken out the men, Iv beat all charges to date, your family law matter is a sweep, now the police are in my sights. I'll win that one too. Then…last but not least – [the Mother’s surname] family- Civil claims, Im nowhere near finished. It's just starting. ... ". Pg 17.
…
19. On 10 May 2022 at 5:30am I received an abusive email from the father which in part stated " .... I can piss fart around for 4 more court appearances while you're paying for each one, then I'll go hire [lawyer A] for the Ass whopping at the end!... " ....You have missiles aiming at me about to fire. It's up to you what u do from here. Careful though…… I have nukes! Once there released and the damage is done [the Mother]. It's done. I can't undo it! Remember that! ... "
…
33. On 12 May 2022 at 5:02pm I received a further text from the Father making derogatory remarks about me and my lawyer asking me "why I was such "a 2 faced cunt", he was going out of his way to "fuck me up and also my partners" and to "grow a fucking brain you dumb cunt!" The Father also threatened me and goaded me to report him for breaching the Intervention Order, he said ".....Go breach me aswel. Follow the advice. Hey me locked up! Better be in another state when I get out I tell ya! Haha.."
…
47. On Sunday 22 May 2022 at 3:13pmthe father texted me and said "the kids will be ready to be picked up at 6:30pm but that if I did what I did on Friday and it happened again he would take the children away from me for good, he was not kidding and would leave the State with them." The father also told me "he would not be participating in the family law matter, he had better things to do, and the children would not be attending anything." The father then threatened me that if I "...fucked him over in anyway and kept pushing, it would be over for everyone and he would press "the red button" and make my family pay once and for all and there is no going back! Read between the lines!" Pg 51, 52 & 53.
48. On 23 May 2022 at 6:22pm the father sent me a further text asking me if he was filing his Affidavit and going to ..destroy my dignity once and for all, which would be on record" or if we ".... were "...fucking this Court shit off and we can organise an independent counsellor on our own. Court isn't going to do anything. As I said before pieces of paper don't mean shit to me. And I won't adhere to anything anyone saids (sic says) anyway!.." The father then threatened me and said "if he did not get a response ...I'll finish you off once and for all!"
…
56. On 31 May 2022 at 8:45pm the father sent me another threatening text stating " .... FYI you think Im fucking around missy?? I'm dead set! I'm taking every fucker out! I don't give a fuck and I'm making noise! I'll be on the ducking news soon!.. "
On 1 June 2022 the Father was arrested, as I understand for breach of an intervention order protecting the Mother, and has been in custody since. He will make an application for bail, it is expected, on 2 August 2022. Below I recite the criminal history that was obtained in subpoenaed records:
·On 25 June 2020 he was arrested for contravention of a Family Violence Final Intervention Order (FVFIO) without conviction and ordered to continue to engage with a psychologist.
·On 18 June 2021 he was charged with use of a carriage service to harass and contravention of a Family Violence Safety Notice without conviction and ordered to continue to engage with a psychologist and attend a men’s behavioural change program.
·On 15 November 2021 he was fined $1200 with conviction for two counts of persistent contravention of a FVFIO.
There were also recent charges described in paragraphs 61 and 62 of the Mother’s affidavit filed on 10 June 2022:
61. On 1 June 2022 I was informed by Victoria Police they had arrested the Father that morning and he has been charged with at least 30 charges including stalking, using a carriage service to menace/harass/offend, contravene a family violence intervention order, commit indictable offence whilst on bail, contravene bail conditions, fail to answer bail, fail to provide information/assistance Data under warrant, Possess Cannabis, Prohibited Person Possessing Imitation Firearm and Resist Police.
62.When the father appeared before the Magistrate on 1 June 2022, he was denied bail. The bail application was adjourned until 8 June 2022 and on that date, the police opposed bail. The Magistrate reserved his decision which will be handed down on 10 June 2022. At the time this affidavit was deposed, the father is in remand.
My associate contacted the Mother's solicitor and requested those solicitors contact the solicitors acting for the Father in regard to his criminal matters to alert him and remind him of the proceedings this day. I take into account that it can be very difficult to appear when in jail, even if only on remand.
When the matter came on this morning, I called the matter and there was no contact with the Father. This is a hearing over Microsoft Teams, and the link had been sent to the other parties and to the Father's last known email address.
Notwithstanding that there may be a controversy about just what is the Father's email address, I am satisfied that the Father has had an opportunity to communicate and to appear in the proceedings if he wished. In the event that that is wrong, he will have the opportunity to revisit these orders pursuant to the Federal Circuit and Family Court Rules (Family Law) Rules 2021 (Cth), being rule 10.13:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
I note that on 22 May 2022, after the hearing on 11 May 2022, the Father advised the Mother’s solicitors that he would not be participating any further in the proceedings, albeit that text included the communication of the issue of once and for all:
…If this happens again! I’m taking them for good away from you. I’m not even kidding. I’ll leave the state. As I mentioned on my email. I’m not participating in the family law matter. I have better things to do. …
On 31 May 2022 he wrote a letter to the Mother’s solicitor clearly indicating that he was withdrawing from these proceedings:
I’am just informing you I’m officially withdrawing and will not be participating any further in legal proceedings. …
I also have the benefit of a 69ZW report which was ordered on 11 May 2022. That report shows that the department are very concerned about the Father's capacity for harassing and threatening, violent behaviour and, indeed, the potential for him to be physically violent.
The ICL presses that I should make a section 102NA order. All of the matters are satisfied for section 102NA. In any event, I make that order in regard to the third limb of section 102NA(1)(c) by relying on (iv), that is, I make that order of my own motion in the exercise of my discretion notwithstanding that the other requirements may be satisfied.
I was asked to order a family report, and I have indicated that I do not intend to do so at this point. I have the benefit of a Child Impact Report that was also ordered on 11 May 2022. The report writer interviewed the Mother, read the material and did not feel it was appropriate at that time to proceed any further to interview the children or the Father; hence, I have an incomplete Child Impact Report.
I also note that the Father was ordered to file material within 30 days of 11 May, that being 11 June 2022. He has not filed any material. That is consistent with his statements of withdrawing and "would not be participating" from his emails.
I will make inquiries as to the matter of the earliest available final hearing for this matter to be listed. The matter had previously been under the control of the National Assessment Team, and the orders of 2 September 2021 refer to the property aspect of the matter for a compliance and readiness check to be arranged by the National Assessment Team.
I was told and understand that the hearing on 11 May 2022 had been allocated on the basis of a compliance/readiness check. The nature of the Father's communications overtook those events. Generously to the Father, rather than suspending the existing orders on 11 May 2022, they were left in place until a Child Impact Report would be received. I note that the Mother had continued to make the children available to spend time with the Father pursuant to the interim orders until very late in the piece.
There has been no communication, offensive or otherwise, from the Father since 1 June 2022 when he was taken into custody. I have not heard the Father's side of the story or received any information from him that may contextualise or qualify what appears to be the nature of his own communications to the Mother.
Sections 60CA, 60CC(2) and (2A) provide as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
At this time, section 60CC(2A) and the risk of harm from the Father to the children, directly or indirectly, weighs heavily.
In all of those circumstances on the information I have, I am satisfied that it is appropriate to make interim orders that the Mother has sole parental responsibility, and that the children live with the Mother, and that, until further order, the Father is restrained from spending time or communicating with the children.
There will be liberty to the Father to apply to spend time with the children on an application supported by affidavit. I do not intend to bring the matter back for another interim hearing just in case the Father participates.
I note that I was asked to give the Mother leave to proceed on an undefended basis at this hearing, but qualified on the basis that that leave to proceed undefended was if the Father did not file documents in accordance with the orders from 11 May 2022. He has not filed documents in accordance with the orders of 11 May 2022, and I propose to make new orders for the filing of trial documents. In the circumstances where one of the issues appears to be an intention on the Father's part to drive up the Mother's costs, outlined in what are alleged to be emails from the Father, I will give the Mother leave to rely upon her affidavits of 9 May 2022 and 10 June 2022. She would need to file an updating affidavit and any other aspects relating to the property matter not otherwise covered.
I will also order that the Child Impact Report and addendum be made available to the DFFH.
I have also determined that the 69ZW report should be provided directly to the Father. I do not know how long he is going to be in jail for. He may be released on 2 August on bail and then be subsequently imprisoned again. I make no finding about what is likely to happen in those proceedings. The ordinary practice of the Court in 2022 is that a litigant-in-person is not to be provided with a section 67Z response or a section 69ZW report from the department and instead a litigant in person is to attend the Court to read, but not copy, those documents. However, the Father is in jail so he simply cannot attend the Court to read the report. Further, were he to do so, he would be able to make a note of the writers' (of any reports) identity.
In all of these circumstances and to ensure procedural fairness to the Father, I propose that the 69ZW response, and the Child Impact Report and the addendum be provided by email to the Father on the condition that those documents are only used for these proceedings but with the identity of the report writers redacted or blacked out. I raised this matter of proceeding with Mr Morrison who appeared for the department amicus curiae, and he did not have any difficulty with that way forward.
It may be that the Father knows the identity of the writer of the 69ZW report because he has been interviewed by the department on numerous occasions. I do not know whether the writer of the report is the same Child Protection officer who has interviewed him or not, and it may not be the same person.
The email communications from the Father are self-evidently very concerning and raise a risk of real harm to the Mother, certainly, and the children. The email communications also self-evidently raise an issue as to the Father’s psychological and psychiatric health. I propose to make an order restraining the Father from communicating with the Mother other than by her lawyer, provided she has a lawyer on the record, in the strongest and clearest terms. If the Father were to be alleged to have breached that order, I would deal with the matter if a contravention came before me. However, the Father should be under no illusions that to attempt to communicate with the Mother, her lawyers, the Mother's parents or any other friend, associate or relative of the Mother in the form of the communications set out in the emails above, or anything remotely like that, then he may well be in breach of that injunction. If it is found proven that a person has breached such an order, the penalties may range from an undertaking, to a fine to imprisonment.
At the invitation of amicus curiae for the DFFH, it has been put that the department would be prepared to provide a further or updating 69ZW report for the purpose of the final hearing, and I will make that order as well. I acknowledge the assistance to me of counsel, the DFFH and the Court Child Expert.
These reasons will be provided to the parties, to the Father’s criminal lawyers with a request the reasons be provided to him, to DFFH and to the Court Child Expert.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 26 July 2022
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