Pieper and Jesberg & Anor (No 2)
[2020] FamCA 749
•27 August 2020
FAMILY COURT OF AUSTRALIA
| PIEPER & JESBERG AND ANOR (NO. 2) | [2020] FamCA 749 |
| FAMILY LAW – PARENTING – Independent Children's Lawyer – principles of conflict of interest discussed – necessary evidence to obtain injunction against Independent Children's Lawyer continuing with appointment – no conflict of interest – injunction not pursued. FAMILY LAW – CONTRAVENTION – alleged contravention of recently made parenting orders – where father did not comply with order to deliver children to a specified location to spend time with mother – one count of contravention proved – on four counts of contravention in relation to children not being made available to spend time with mother, father found not to have complied with primary order with a reasonable excuse. FAMILY LAW – CONTRAVENTION – consequences of contravention – consequences of contravention not proved by virtue of reasonable excuse – court’s power to vary primary order. FAMILY LAW – PARENTING – where there are problems with implementation of order which are to be expected after change in residence and reversal of parental responsibility – where supervised counselling under s 65L of the Family Law Act 1975 would be valuable resource for the parties – s 65L orders no longer able to be supported by the court due to lack of resources. FAMILY LAW – PARENTING – where existing injunction for personal protection of children prohibits mother from bringing children into contact with her former partner – where mother appears not to take injunction seriously – where injunction made directly against former partner – where mother’s face to face time with children suspended pending reportable assessment pursuant to s11F – where mother’s electronic communication with children increased from one to two hours per week pending reportable assessment pursuant to s11F as well as further time to be otherwise agreed. FAMILY LAW – INJUNCTION in parenting matter – where father seeks injunction against maternal aunt contacting children - where maternal aunt has no notice of proceedings – leave granted to father to make oral application – application adjourned pending service on maternal aunt. FAMILY LAW – NOTICE OF RISK – where DHHS was party to final hearing which is recently concluded – where not necessary to serve DHHS with Notice of Risk. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Carindale Country Club Estates Pty Ltd v Astill [1993] 115 ALR 112 Kallinicos & Hunt (2005) 64 NSWLR 561 McMillan and McMillan (2000) FLC 93-048 Osferatu & Osferatu [2015] FamCAFC 177 Thevenaz & Thevanez (1996) FLC 91-748 |
| APPLICANT: | Mr Pieper |
| RESPONDENT: | Ms Jesberg |
| SECOND RESPONDENT: | Mr Nader |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Finn |
| FILE NUMBER: | MLC | 8376 | of | 2012 |
| DATE DELIVERED: | 27 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 27 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Pieper in person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms Jesberg in person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Nader in person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Eidelson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | VM Family Lawyers |
Orders
IT IS ORDERED THAT:
As soon as possible the Independent Children’s Lawyer file and serve the undertaking referred to by him in paragraph 20 and 21 of his affidavit filed on 26 August 2020.
In relation to the Contravention Application of the mother filed on 24 August 2020:
(a) As to Count 1, that in contravention of paragraphs 5(a), 7(a), and 7 of the Primary Order, on 24 April 2020 at 3.10 pm the father without reasonable excuse failed to deliver the children B born … 2007, C born … 2007 and D born … 2010 (collectively “the children”) to the mother at the mother’s residence, I find the count proved;
(b) As to Count 2, that in contravention of paragraph 5(b) of the Primary Order, on 3 July 2020 at 3.00 pm the father without reasonable excuse did not facilitate contact between the child D and the mother, I find the Count 2 not proved and it is dismissed;
(c) As to Count 3, in contravention of paragraphs 5(c) and 7(b) of the Primary Order, on 16 July 2020 at 3.06 pm the father without reasonable excuse refused to allow the mother to spend time with the child D, I find the Count 3 not proved and it is dismissed;
(d) As to Count 4, in contravention of paragraphs 5(c) and 7(b) of the Primary Order, on 30 July 2020 at 3.00 pm the father without reasonable excuse refused to allow the mother to spend time with the children B, C and D, I find the Count 4 not proved and it is dismissed;
(e) As to Count 5, in contravention of paragraphs 5(c) and 7(b) of the Primary Order, on 13 August 2020 at 3.00 pm the father without reasonable excuse refused to allow the mother to spend time with the children B, C and D, I find the Count 5 not proved and it is dismissed;
I reserve my decision as to penalty and consequential orders in respect of the father’s contravention as detailed in Count 1 above, to be determined following the release of the s 11F assessment provided for in this Order.
The mother’s contravention application filed 24 August 2020 be otherwise dismissed.
This parenting matter be adjourned to 6 October 2020 at 10.00 am for an interim hearing of the father’s application to vary the final orders made on 17 March 2020 (“the Primary Order”) estimated to take one day (“the adjourned date”).
Pursuant to s 11F of the Family Law Act 1975 the parents to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court as directed by the Director of Child Dispute Services:-
(a) The sequence and organisation of interviews is a matter within the sole discretion of the family consultant;
(b) The family consultant may appoint further interviews for the parties and the children B born … 2007, C born … 2007 and D born … 2010; and
(c) It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court prior to the adjourned date, and to specifically address the following:
a)What face to face time the children should have with the mother if the court cannot be satisfied that the mother recognises the seriousness risk to the children (or any of them) of coming into contact directly or indirectly with Mr Nader;
b)What electronic communication the mother should have with the children;
c)How best to inform the children of the outcome of this proceeding.
IT IS REQUESTED that the family consultant be available for cross-examination at 10:00 a.m. on the adjourned date.
For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.
The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.
If the s 11F interviews are conducted electronically each party be and is hereby restrained by injunction from causing the assessment interviews or any part thereof to be recorded or taped. Any recording taken in contravention of this order is inadmissible in these proceedings.
Until further order, the mother’s face to face time with the children B, C and D be, and is hereby, suspended.
Until further order and whilst the mother’s face to face time with the children remains suspended:
(a) in addition to communication pursuant to paragraph 5(g) of the Primary Order, the mother notify the father by email of the date and time that it would be convenient to her to have one further one hour period of electronic communication with the children per week and the father promptly indicate his agreement to that time or propose another time;
(b) the mother have such further or other electronic communication with the children as the parents may agree.
Save for the electronic communication provided for in the preceding paragraph of this Order, the mother not have any other electronic communication with the children nor cause, permit or suffer anyone else to communicate with the children (or any of them) on her behalf. If the mother is contacted by the children (or any of them) electronically and outside the parameters for electronic communication provided for in the preceding paragraph, the mother simply advise the children that communication is limited and remind them of the next scheduled electronic communication.
The second named respondent, Mr Nader, be and is hereby restrained by injunction from being at or within 100 metres of:-
(a) the children B, C and D (or any of them);
(b) any place where the children reside; and
(c) any place where the children attend for education; and
(d) any place where the children attend for recreational purposes.
The father is granted leave to make an oral application for an injunction to be issued against the maternal aunt, Ms E of Sydney, prohibiting Ms E from:-
(a) being at or within 100 metres of:
a)the children B, C or D (or any of them);
b)any place where the children reside;
c)any place where the children attend for education;
d)any place where the children attend for recreational purposes;
(b) from communicating with the children (or either of them) electronically, by telephone, by email, Facebook or any other messaging device or social media platform and from causing, permitting or suffering any person to do so on her behalf –
(“the father’s oral application”).
If the father or the Independent Children’s Lawyer sends a copy of this Order to the maternal Aunt, Ms E, by email or post, under cover of a letter drawing her attention to paragraphs (15) to (22) inclusive of this Order, such notice will constitute notice to Ms E of the father’s oral application.
The mother forthwith ascertain and provide the email and/or postal address of the maternal aunt, Ms E, to the Independent Children’s Lawyer and to my Chambers.
If after making all proper and reasonable enquiries the mother cannot locate the email and/or postal address for her sister, Ms E, the mother notify the Independent Children’s Lawyer and my Chambers of the address which the mother uses to contact her sister “on Messenger”.
I adjourn the oral application of the father to the adjourned date.
If the maternal aunt, Ms E, wishes to participate in the proceedings on the adjourned date, to oppose or to consent to the father’s oral application or for some other reason, she:
(a) notify my Associate – … - by not later than Thursday 1 October 2020, provide her details for the connection and conduct a rehearsal/test run of the court’s video conference platform;
file and serve a Notice of Address for Service (which can be found on in the Forms tab)
If the maternal aunt, Ms E, does not participate in the proceedings on the adjourned date, the father be at liberty to seek that an order in the terms of the father’s oral application be made on the adjourned date, in the absence of the maternal aunt, and without any input from her.
IT IS DIRECTED that the Independent Children’s Lawyer explain to the children that:
(a) the court has suspended their face to face time with the mother until the adjourned date;
(b) an order has been made against Mr Nader that he not contact or approach them;
(c) the mother can speak to them for one hour twice a week by video conference but is not permitted to communicate with them at any other time without the father’s prior agreement.
In anticipation of the hearing on the adjourned date:
(a) By not later than 2 September 2020, the mother file and serve a Response to an Application in a Case which sets out with precision the orders which she seeks be made on the adjourned date;
(b) All parties file and serve any further affidavit evidence upon which he she proposes to rely by not later than Thursday 1 October 2020;
(c) All parties be ready to cross-examine the Family Consultant at 10:00 a.m.
To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that subpoenas are returnable and all documents are inspected by 28 September 2020.
IT IS REQUESTED that the Independent Children’s Lawyer cause a subpoena to issue to the Proper Officer of Victoria Police to produce documents in relation to any welfare check, home visit to the father’s household at Suburb Y in March 2020 including the identity of the complainant or person on whose information the visit was made.
The proceedings this day be transcribed and placed on the Court file.
My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pieper & Jesberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8376 of 2012
| MR PIEPER |
Applicant
And
| MS JESBERG |
Respondent
And
MR NADER
Second Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
(SETTLED FROM TRANSCRIPT)
Introduction
This matter comes before me as an urgent listing of the mother’s contravention application filed on 24 August 2020 and the husband’s parenting application filed on also filed 24 August 2020. The proceedings concern the twin girls, B and C, born … 2007 and D born … 2010. This matter was the subject of a long hearing before me commencing on 6 January 2020 and concluding on 17 March 2020 when I pronounced final orders. Those proceedings were complex and the Department of Health and Human Services (“DHHS”) was a party. Prior to the final hearing, the children had not spent time with the father since September 2017 and the mother and DHHS opposed time. Whilst the matter ultimately resolved by consent, I delivered reasons for decision to make clear the context in which the final orders were made. The result was that the children were removed from the primary care of the mother, the father has sole parental responsibility and I enjoined DHHS from permitting certain case workers to engage with the family. The reasons are at case neutral citation [2020] FamCA 370 but I ordered that the reasons would not be placed in the public domain. The Department of Health and Human Services are not a party to the current proceedings and no other party seeks to join DHHS.
The proceedings are returnable before me because I ordered that any parenting application or contravention application could be listed before me urgently in the event that I was reasonably available.
This hearing is conducted during Stage 4 of the pandemic restrictions for Melbourne, Victoria on the Court’s Microsoft Teams platform. The hearing was conducted in three parts:
a)First, the mother’s preliminary assertion that the Independent Children’s Lawyer, Mr Mark Finn, may be conflicted and not suitable to be reappointed;
b)Second, the mother’s application that the father be dealt with for five counts of contravening the extant parenting orders;
c)Third, the restraining orders sought by the father, the variation of the extant parenting orders, including any orders to be sought by the mother in response to the father’s Application in a Case and the father’s application that the mother’s face to face time with the children be suspended.
The conflict of interest issue was disposed of by Mr Finn being required to provide an undertaking in terms offered by him. I sat until late in the day to determine the contravention application. I made procedural orders in relation to the parenting proceedings. I enjoined second named respondent, Mr Nader, from coming into contact with the children until further order and suspended any face to face time to which the mother is entitled with the children until the adjourned date. The mother’s communication with the children was increased from one hour on Wednesdays by another hour at a time to be agreed and as may otherwise be agreed.
The mother relied on her affidavit sworn or affirmed on 16 August 2020. The father relied on his affidavit sworn or affirmed on 24 August 2020. The mother, father and Mr Nader were cross examined. Mr Nader is a respondent to the father’s parenting application. He is not a party to the mother’s contravention application. Accordingly, he did not participate in the contravention aspect of the proceedings until he was cross examined. He was present throughout the submissions for the parenting application and readily consented to the father’s application to restrain him (Mr Nader) from coming into contact with the children.
In these reasons, a statement of fact is a finding of fact.
The Independent Children’s Lawyer
Upon my Chambers being notified that applications have been filed on 24 August 2020, I made an order requesting the appointment of an Independent Children’s Lawyer noting that Mr Finn had previously acted in that capacity. Mr Finn, Solicitor, appears as Independent Children’s Lawyer having been reappointed by Victoria Legal Aid on 25 August 2020. The mother notified my Chambers and indicated that there may be a conflict of interest which affects Mr Finn’s eligibility for reappointment. Accordingly, this was the first issue raised at today’s hearing.
The mother clarified that she has no objection to Mr Finn acting as Independent Children’s Lawyer but would object for him acting for the father (which, of course, he does not purport to do).
Mr Finn swore an affidavit on 26 August 2020 in which he explains that he has no knowledge which would give rise to a conflict of interest.
The father supports Mr Finn continuing to be involved in the proceedings.
An Independent Children’s Lawyer is appointed under s 68L of the Family Law Act 1975 (Cth) (“the Act”). The Independent Children’s Lawyer’s role is to represent the best interests of the child, arranging for necessary evidence, including expert evidence, to be obtained and put before the Court, facilitate the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case, and act as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate. In this case the Independent Children’s Lawyer is also expected to interact with the children, to accord them the respect and keep them informed of the proceeds of the progress of the proceedings and what orders have been made and how those orders impact upon them. It is a challenging task because these children have been exposed to an extraordinarily high level of parental conflict for a long time.
No one sought to cross examine Mr Finn. I accept his evidence as unchallenged.
Mr Finn is the fourth Independent Children’s Lawyer to have acted in this matter since proceedings were commenced. A perusal of the court file reveals:
a)In February 2013 Ms F of G Lawyers was appointed pursuant to Order made by Federal Magistrate O’Sullivan (as he then was);
b)On 5 March 2015, Mr H of K Lawyers, went on the record as Independent Children’s Lawyer;
c)In December 2018, Ms K of K Lawyers, was appointed by Victoria Legal Aid, the father raised an issue with Ms K’s appointment and she withdrew;
d)Mr Finn filed a Notice of Address for Service as Independent Children’s Lawyer on 12 December 2018. He was then a solicitor in the employ of L Lawyers. After final orders were made by me on 17 March 2020, Mr Finn left L Lawyers and commenced as an employee of VM Family Lawyers, a private firm. VM Family Lawyers previously operated as Altavilla Vessali but became VM Family Lawyers upon Ms Vessali’s departure from that firm in 2017.
Over the course of these proceedings the mother has had five solicitors act on her behalf. Her first solicitors were Altavilla Vessali who were on record for some five months from 7 October 2013 until 27 March 2014. O Lawyers acted for the mother on two occasions, P Lawyers have also acted for the mother as have Q Lawyers. R Lawyers acted for the trial that we have just completed having been appointed by Victoria Legal Aid pursuant to s 102NA of the Act. The mother currently represents herself.
For the sake of completeness the father has had two previous lawyers, S Lawyers and U Lawyers. He represented himself at the final hearing earlier this year and does so now.
Any concern about Mr Finn acting as Independent Children’s Lawyer is not because he has a predisposition against the mother or is biased but because he may be privy to information that the mother disclosed to Ms Altavilla six or seven years ago. There are three bases upon which an injunction may be granted to restrain the lawyer from continuing to act. These were discussed by Brereton J in Kallinicos & Hunt (2005) 64 NSWLR 561 at [33] as being:
a)the implied power of this court to supervise and control the product the conduct of legal practitioners as officers of the court;
b)the breach of the duty of loyalty where “acting against a former client was said to be inconsistent with the solicitors fiduciary obligation of loyalty to that former client”;
c)breach of confidence “where to move permit the solicitor to continue to act (usually, although not invariably, against a former client) would involve a risk that the solicitor might use, or be bound to use, information which he or she had subject to a duty of confidence to the former client”.
In this case, there is no issue that this Court would have the power to restrain Mr Finn from acting as Independent Children’s Lawyer.
In conflict of interest cases, the risk of disclosure of confidential information “must be a real one and not merely fanciful or theoretical but it need not be substantial.” See Carindale Country Club Estates Pty Ltd v Astill [1993] 115 ALR 112 at 118.
The law in relation to conflict-of-interest was reviewed generally by the Full Court of the Family Court in Osferatu & Osferatu [2015] FamCAFC 177 which definitively moved away from an applicant for an injunction to restrain a solicitor acting needing to show only a “theoretical risk” that confidential information may be misused. In requiring an appreciable or actual risk of disclosure of confidential information, the Full Court in Osferatu’s case brought conflict of interest cases in family law into line with other jurisdictions and cases such as the decision of the High Court in Carindale Country Club Estates.
In Osferatu’s case the Full Court reviewed previous authorities such as McMillan and McMillan (2000) FLC 93-048, Thevenaz & Thevanez (1996) FLC 91-748. In McMillan and Thevenez the applicant sought to restrain a solicitor or clerk to whom they had recently given instructions from acting in the same proceedings. Relevantly, in Osferatu’s case their Honours articulated [50] that there are three stages which need to be considered:
· whether the firm is in possession of information which is confidential to the former client;
· whether that information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
· whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
51. The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied.
In this case the mother does not allege that she imparted any confidential information to Mr Finn. The mother’s instructions were given to Ms Altavilla who departed the firm some 3 years before Mr Finn commenced his current employment. Furthermore, the mother did not particularise any information which she considered confidential.
At the third step being the Court considering any risk of disclosure, the Court will look at what steps can be taken to minimise any risk by putting in place Chinese walls or “information barriers” or the giving of undertakings such as Mr Finn proposes and which is set out in his affidavit in the following terms:
21.The undertaking will include a promise to the court that I have not and will not endeavour to access the mother's archived file either personally or electronically, or via my servants and agents.
Ultimately, the mother did not press the conflict of interest issue. However, the authorities make clear that an applicant seeking to restrain a solicitor or firm of solicitors must act promptly. I have stepped through the relevant considerations to remove a practitioner from a case on the basis of a conflict of interest. Whether Mr Finn had a conflict of interest arising out of his employment at a firm which is the successor of a firm which the mother consulted several years ago is a once and for all proposition with which the court has now dealt.
I find that Mr Finn is not precluded by virtue of any conflict of interest from continuing to act in the capacity of Independent Children’s Lawyer in this case.
The mother’s contravention application
In contravention applications, it is assumed that adhering to the orders is in the best interests of the children. It is not an inquiry as to whether or not the order is appropriate or should have been complied with. It is whether or not the order was complied with or contravened and, if contravened, whether there was a reasonable excuse for non-compliance. If circumstances emerge that indicate that an order should be varied or discharged to better serve the best interests of the children, s 70NBA of the Act provides that parenting orders can be varied or discharged having regard to the considerations set out in ss 60C and 70NBA(2) of the Act.
The parents are both unrepresented and appear on their own behalf. They were each provided with a copy of Rule 21.08 of the Family Law Rules 2004 and I explained how the procedure described in the rules would apply in their case.
RECORDED : NOT TRANSCRIBED
Section 70NAC of the Act provides that someone is taken to have contravened an order under this Act affecting children if, and only if, where the person is bound by the order, he or she has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order or prevented somebody else from doing so or aided and abetted a contravention.
An order may not be complied with, but the non-complying party may assert that they had a reasonable excuse for not doing so. Section 70NAE provides that a person is taken to have had a reasonable excuse for contravening an order under this Act affecting children, for the circumstances which include, but are not limited to, circumstances set out (relevantly for this case) in s 70NAE(5) of the Act.
Section 70NAE(5) provides that:
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Notably s 70NAE provides an inclusive definition. Accordingly, it includes examples of circumstances which could constitute a reasonable excuse but the example, of the health and safety of a person, is not exhaustive. There could be other circumstances which constitute a reasonable excuse, which do not relate to the health and safety of the child or other relevant person. It is fair to say, however, that the temporal link between the circumstance and the necessity for non-compliance which is provided for in sub-paragraph (b) must be satisfied. That is, a circumstance will only constitute a reasonable excuse if the period of non-compliance, “was not longer than was necessary to protect the health or safety of a person described in sub-paragraph (a)” or such other circumstance as the respondent relies upon.
Whether or not there is a reasonable excuse is a matter on which I have to be satisfied on a balance of probabilities. That means that it is more likely than not.
The mother bears the onus or proving that the primary order required certain things to be done or not done. To the extent that the father may allege that he had reasonable excuse for non-compliance with an order, the respondent father bears the onus of establishing the circumstances which give rise to the reasonable excuse. In both instances, the burden of proof is as to a balance of probabilities (s 70NAF(1)). By balance of probabilities, I have explained to the parties that the expression means that it is more likely than not.
The consequences of an order being contravened without reasonable excuse are set out at Subdivision C, D, E and F of Part VII, Division 13A of the Act.
RECORDED BUT NOT TRANSCRIBED
The mother alleges that the father has, without reasonable excuse, contravened the final parenting order made on 17 March 2020 as to five counts.
I will refer to the final parenting order made on 17 March 2020 as the “primary order”. Relevant to the mother’s contravention application as well as the father’s parenting application, the primary order provided:
(2) Subject to paragraph 3 of this Order below, the Father have sole parental responsibility for the children.
(3) For the purpose of paragraph 2 of this Order, in the exercise of sole responsibility for the children (or any of them), save in the event of an emergency, the Father shall advise the Mother of any and all major decisions he intends to make for the children (or any of them) in writing (including by Our Family Wizard communication app) and invite the Mother’s written response within 7 days and upon receipt and consideration of her written response, advise her in writing no less than 7 days after making a final decision in relation to such matters.
…
(5) The children spend time and communicate with the Mother as follows:
(a)Subject to paragraph 6 of this Order below, on the weekends of 20 March 2020, 3, 17, and 24 April 2020 from the conclusion of school on Friday (or 3pm in the event of a non-school day) until the commencement of school (or 9am in the event of a non-school day) on Monday;
(b)Commencing 8 May 2020 until 6 July, in each alternate week from the conclusion of school on Friday (or 3pm in the event of a non-school day) until the commencement of school (or 9am in the event of a non-school day) on Monday;
(c)During school term periods, commencing Thursday, 16 July 2020 until 1 December 2020, in each alternate week from the conclusion of school on Thursday (or 3pm in the event of a non-school day) until the commencement of school (or 9am in the event of a non-school day) on Monday;
…
(g)By electronic communication, including by sms text message, Messenger, email, FaceTime (or like type communication) each Wednesday between 5.30pm and 6.30pm, with the Mother to initiate such communication to the children’s service and the Father shall ensure the children are afforded privacy during their communication with the Mother;
…
(7)For the purpose of changeover, save as may be agreed between the parents in writing:
(a)For the purpose of time pursuant to Order 5(a) above, the Father be responsible for collecting the children from their respective schools at the conclusion of school and delivering the children to the Mother’s residence at [W Street, Suburb X] at the commencement of the children’s time with their mother and the Father shall collect the children from the Mother’s residence on Monday at 8am (or 9am in the event of a non-school day) at the conclusion of the children’s time with their mother and the Mother ensure the children’s readiness and availability to return to the Father’s care and to walk to his car at 8am (or 9am in the event of a non-school day); and
(b)For the purpose of time pursuant to paragraph 5(b) to (f) of this Order above, the Mother collect and return the children to their respective schools at the commencement and conclusion of the children’s time in her care during all school days AND in the event of a non-school day changeover be effected at the Suburb Y Police Station.
...
(8) Each of the Father and the Mother, their servants and agents, be and are hereby restrained from
(a)causing, permitting or suffering discussion on the following topics with the children (or any of them) allegations and/or evidence in this proceeding;
…
(d)bringing, causing, or permitting the children (or any of them) to come into contact with Mr Nader.
The application alleges five counts. I will deal with them chronologically and under their respective headings.
Count One
It is alleged that at 3:10 p.m. on 24 April 2020, the father, without reasonable excuse, failed to deliver the children to the mother’s home address and did so in contravention of subparagraphs (7)(a), (5)(a) and (7) of the primary order.
The father concedes that the children were not delivered to the mother’s home. He further concedes that the extant order required that the children be delivered to the mother’s home. The mother alleges that at 1.53p.m. she received a text message from the respondent father advising that she would need to attend Suburb Y Police Station because he would not be dropping the children off at her home. The mother replied, “The Court orders state that you need to drop them at my house, as this is the final weekend that requires you to do that, see you when you drop them off at my house”. The mother deposes that the father replied saying there was, “No chance”. At 3:10 p.m., the mother sent a text message asking where the father was and he responded with a text message stating, “I’m at the police station for another five minutes and then I’m leaving”. The mother made her way to the police station and collected the children.
The father’s evidence was that the reason he did not take the children to the mother’s residence was that he was concerned about being in such close proximity to the mother.
This was the fourth period of time to which the mother had been entitled to see the children. The father’s evidence was that on the first three occasions, the mother walked out to his car with the children, opened the hatch at the back of the car, put the children’s luggage in the boot of the car, said something to him in Arabic, which he interpreted as a term of abuse, and then slammed shut the hatch to the back of the car.
The mother concedes that she did walk out to the car and said that she did so because she thought she was required by the Order to do so. The mother was not compelled to walk out to the car. Paragraph 7(a) of the Order is clear. It provides:
The Mother ensure the children’s readiness and availability to return to the Father’s care and to walk to his car at 8am (or 9am in the event of a non-school day)
The Order obliges the mother to have the children ready to meet the father and to have the children walk out to his car at the appointed time. Otherwise, the mother denies speaking in Arabic, she denies speaking abusively and she denies slamming the hatch to the back of the car.
I understand the significance of the father’s concern about coming into contact with the mother, particularly in close proximity to the children. However, the primary Order does not prohibit the mother from walking to the car with the children.
I questioned the father about whether he notified the mother that he did not want her to approach his car, whether he had made any complaints about her being in close proximity to him, saying something in Arabic and then slamming the hatch to the car. His first response was that he could not recall what was discussed and when it was discussed with the mother but that he thought that it was probably in a text or in a telephone conversation. After further discussion on this point, the father’s evidence firmed, so that he “definitely recalled” telling the mother that she shouldn’t be coming to the car and saying any words to him or about him in Arabic.
Given the father’s earlier evidence in which he was uncertain as to whether he raised his objections with the mother, I am unable to accept his ultimate evidence that he “definitely recalls” some discussion with the mother by telephone on this issue. I am not satisfied that his grievances about what the mother was doing at the changeover were ever communicated to the mother. Of course, not all of the behaviour which the father found objectionable would need to be notified to the mother. Common courtesy dictates that a parent should not slam a door shut or swear. However, it is possible that the mother shutting the hatch door firmly sounded to the father like the hatch was slammed. I cannot be sure that the mother slammed the hatch to the car. The real problem is that each parent misconstrued the primary order. The mother construed it as requiring her to accompany the children to the car and the father construed it as prohibiting the mother from coming to the car. Both were wrong. The balance of the father’s complaints, which were throwing the children’s bags in the boot, swearing at him in Arabic and slamming the hatch, would not have occurred if the mother stayed at her front door. I do not accept that the father raised his objections about the mother’s behaviour with the mother. I am unable to be satisfied that the father’s unilateral decision to make the children available to the mother at the police station was necessary, within the spirit of s 70NAE(5), when I am satisfied that he did not put the mother on notice not to touch his vehicle.
I find Count One proved.
Within the context of the Court’s power to vary the primary order pursuant to s 70NBA, I request that the Independent Children’s Lawyer remind the parents to consider regulating how they should approach one another at changeover, if at all.
Count Two
It is alleged by the mother that at 3:00 p.m. on 3 July 2020 at Suburb Y Police Station, the respondent father, without reasonable excuse, did not facilitate time to be spent between the mother and D.
The mother’s affidavit material is fairly detailed. She deposes:
9.On Friday 3 July 2020 at 14.16 I received a text message from the respondent saying:
“Hi, [D] wants to stay here this weekend with me and mum. I have been encouraging him to go and I explained things to him however he still wants to stay here. What do you think?”
I replied with a text message saying, “I would like him to come and tell me himself.”
10.At 15.00 all 3 children attended at [Suburb] Y Police Station, [B] and [C] got into my car, but [D] did not. I wheeled a bird cage I got for the children’s pet birds over to the Respondent’s car and [D] followed, and then said that “he didn’t want to come for my visit and stay with me for the weekend”.
11.I stood with [D] at the Respondent’s car for some time listening to [D] and trying to explain that it was time for [D] to come and spend time with me, but [D] kept insisting that he wanted to stay with the Respondent and his mother. I then explained to [D] that he had just had close to two weeks with them and asked why he didn’t want to come. [D] replied by saying “Well dad hasn’t seen us for the past 8 years, and he misses us, and wants to spend more time with us, this is my choice to stay with dad”.
12.I then asked the Respondent to help me explain to [D] the situation and to encourage him to come with me, but the Respondent replied “that he had done all he could and if [D] didn’t want to go, he wasn’t going to make him”.
13.I tried other ways to encourage [D] to come home with me. For example, I said that if he came home with me that he could go back to his dads early and stay Friday night at his dad and then pick him up on Saturday, but [D] said “NO”.
14.[D] was pacing up and down the whole time I was talking to him, looking at the Respondent’s car, and didn’t want to stand with me under the umbrella, as it was raining.
15.As the situation was not going anywhere and [D] was not interested in any sort of compromise and no encouragement from the Respondent, I had no choice but to leave [D] behind.
The father did not appear to take exception with the mother’s version of events. However, he says that there was a further discussion between D and the mother and him and D, during which he encouraged D to attend with his sisters, to spend time with the mother. The father’s evidence was not challenged by the mother and was that he had packed D’s bags and that D’s belongings were with him.
The mother’s evidence raised that the paternal grandmother had been staying in the father’s household and that D said to the mother that he wanted to spend more time with his paternal grandmother and the father without the girls. The mother put to the father that this was the only reason that D said that he did not want to attend time with her on the weekend of 3 July 2020. That premise contradicts the mother’s evidence at [11] of her affidavit, which I have extracted above, in which the mother describes D saying that as he had been withheld from the father for eight years and he (D) wanted to spend more time with the father now.
My impression is that D would not go to the mother and anything short of picking him up and physically bundling D into the mother’s car would not have moved him. I make no definitive finding on the sincerity of the father’s attempt to persuade D to spend time with the mother. Rejecting behaviour, which D displayed to a modest degree on this occasion, is complex. There is so much more to take into account than what transpires at changeover. Children glean parental expectations and attitudes broadly and constantly. D has had a lifetime of looking at how his parents’ highly conflictual relationship played out for his twin sisters. He has experienced years without being able to spend time with the father for no better reason than the mother’s tactical resolve to exclude the father from the lives of the children because of her own insecurities and sense of inadequacy and the poor decisions of DHHS protective workers to support, indeed promote, the mother’s resolve. D is a seasoned observer of his parents’ machinations and manoeuvring. It is hardly surprising that he now feels empowered to project his own needs to the fore and to use strategies modelled by his parents and his sisters.
In terms of the concerns which were building in the father’s mind about whether the mother would abide the restriction of bringing the children into contact with Mr Nader, I have regard to the evidence which emerged about:
a)the mother not having divorced Mr Nader;
b)the Victoria Police being directed to attend the father’s home to conduct a welfare check on the children;
c)the mother sending the girls home with “henna tattoos”; and
d)D saying that he was fearful of going to the mother’s home.
The mother’s evidence at the final hearing had been that she decided to divorce Mr Nader whilst sitting in Court and she gave evidence to that effect before telling Mr Nader that the marriage was over. Later in the final hearing, the mother’s evidence was that she had erased Mr Nader’s contact details from her phone because she no longer had any need to contact him, notwithstanding that the shared motor vehicle was not sold.
The father had noticed that the mother was still driving the vehicle owned by Mr Nader which she had given evidence in March 2020 was to be sold as soon as possible. The mother’s evidence had been that the motor vehicle was the only unresolved business between her and Mr Nader and that she had otherwise expunged Mr Nader from her life to the point of erasing his telephone number from her telephone. The father extrapolated from the continued use by the mother of the vehicle, three months after she decided to end her religious marriage of convenience to Mr Nader, as evidence that the marriage had not ended and that Mr Nader was, as it were, still on the scene. It is not an unreasonable level of circumspection on the father’s part. This is particularly given due to the duplicitous representations by the mother and the DHHS protective worker Ms Z at the final hearing that Mr Nader had “left the [mother’s] home” as a consequence of the girls’ complaints about his inappropriate sexual touching whilst omitting that Mr Nader returned home whilst the mother worked to cook D’s dinner in close and unsupervised proximity to the girls.
At this hearing of the contravention application, the mother said that she had not divorced Mr Nader. There was the following interchange:[1]
HER HONOUR: Okay, are you divorced from Mr [Nader]? ---No, we are separated.
Why aren’t you divorced? ---The car is still not sold but I have another way to deal with it rather than selling the car, so I’m looking at other options to finalise the car.
Why aren’t you divorced? ---Because I still have to have dealings with Mr [Nader] with the car.
You sat in the witness box and said that you were going to divorce, do you recall that? ---Yes, that’s correct, your Honour, and I still stand by that.
But you haven’t? ---That’s correct.
And you don’t have to be married to him to talk to him about the car, do you? ---Yes.
Why do you need to be married to him to talk to him about the car? ---So we can converse, men and women don’t mix.
So you say that you would be prohibited from talking to Mr [Nader] about the motor vehicle if you got divorced? ---Yes.
[1] Transcript in Confidence, 27 August 2020, pp. 21-22, 38-9.
Having regard to the fact that the mother was still driving the vehicle, the father’s conclusion that that the mother had not divorced Mr Nader was objectively sound.
The Victoria Police attended the father’ home on the first weekend that the children were in his care following the final orders to conduct a welfare check on the children. At paragraph [9] of his affidavit , the father refers to this as having occurred on 20 March 2020 but it is more likely to have been on or about 13 March 2020. The father deposes:
8. Contrary to agreed contact as per Parenting Order 5(g), Ms [Jesberg] has continuously engaged the children in text conversations at all hours of the day and night. What I initially allowed as a "gesture of good will" with regard to an occasional text exchange between Ms [Jesberg] and the Children, (in addition to the court orders), has now become a compulsive form of manipulation and coercive control by Ms [Jesberg]. As time has moved on, that contact has increased, and is disruptive to the children’s peaceful enjoyment of their new home, and the building of a relationship with me and between themselves.
9. On several occasions I have requested Ms [Jesberg] to cease texting the children outside of the Parental Orders, but this has served to only exacerbate the situation. Ms [Jesberg] has not only refused to comply but has increased the pressure on the Children by inciting their Aunt Ms [E] to create additional turmoil. This is evidenced when, on the first weekend of them being with me, 20/3/2020, the Aunt raised a Welfare Check and asked the [Suburb AA] Police to attend, which they did with a Divi Van at 9:45pm that evening. This caused embarrassment, humiliation, and denigration of me before the Children and our neighbours and caused further anxiety and fear in the Children which they acted out. [D] had nightmares that night and needed to be consoled.
Significantly, the father places responsibility for the police check, not on the mother but on the maternal aunt, Ms E. The mother confirmed that she had read the father’s affidavit earlier this week. She is in regular contact with her sister. However, at no stage did the mother raise with the maternal aunt whether she (the aunt) had caused the Victoria Police to visit the father’s home in a divvy van. The mother’s evidence was that she had no knowledge of the welfare check until she read about it in the father’s affidavit earlier this week. The following discussion ensued:[2]
[2] Transcript in Confidence, 27 August 2020, pp. 16-17, 11-8.
HER HONOUR: Did you have anything to do with that welfare check? If we call the whole incident a welfare check? ---No, I did not.
When did you last speak to your sister about it? ---I haven’t spoken to my sister about it.
Where is your sister? ---I have three sisters. If you are referring to [Ms E], she is in Sydney.
When did you last speak to your sister? ---Three weeks ago.
All right, so it’s now August, that would have been in about the first week of August. Can you tell me how regularly you speak to your sister and what I would really like to know, is when you have spoken to her between March and today? ---I haven’t – we don’t talk often. She will send me a message to say how are you going, but we don’t ring and speak to one another. It’s usually via text messages and they’re just – she is just checking in on me. The one three weeks ago was because her dog had puppies, so.
Right, so when did you raise in a text or other communication with her whether or not she had called the police and asked them to go and check on the children? ---I didn’t.
When did you read this affidavit that was sworn or affirmed on 24 August? ---I think I read it, it was this week so I’m not sure whether or Monday or Tuesday that I received it.
Today is Thursday. Did it occur to you to ring your sister and ask her whether she did this? ---No, I didn’t.
Do you think that she did it? ---No, I don’t.
Can you tell me why you think she didn’t, in view of the fact that you have not asked her? ---Because I don’t think that any of my family know where Mr [Pieper] lives.
Any other reason? ---No. Well, they would have told me if they had called the police and that didn’t happen.
Why would they have told you if they had called the police? ---I don’t know, it’s just something that I think my sister would have told me, if she had have called Victoria Police to attend where the children are. I would expect her to.
It may ultimately be suggested that you have shown a remarkable lack curiosity in not trying to verify whether or not she was involved, since you have read the affidavit some days ago, or earlier this week. Have you got a comment to make about that? ---No, I don’t have a comment to make about that.
I accept that the father thought that the police welfare check originated from a person associated with the mother. This would not, of itself, found a reasonable excuse for contravening an order but is part of the relevant context.
In late May 2020, the mother permitted and facilitated each girl having her forearm decorated with henna. The father refers to this in his affidavit at [16] as follows:
During Ramadan in May [approximately 24 May 2020] both girls came back from their mother’s with henna tattoos on both hands to their elbows. In Islam, henna tattoos are used in the preparation of brides and the unbetrothed sign of young girls. (Wikipedia). The girls said, “Mum did it”. However, [D] identified that “a lady came to do the Girls and Mum”. I am concerned that this is (a) exposing the girls to more Islamic religious practices, (b) continuing to groom them for an adolescent marriage.
If I can just take a moment to consider Islamic marriages in this case. At the final hearing, the mother conceded that Mr Nader had spoken to the girls about arranged marriage but said that, in her view, arranged marriage was not in serious contemplation for the girls. Whilst that may have been the mother’s view, one cannot lose sight of the children’s experiences of the mother’s Islamic marriages. The mother’s first Islamic husband was Mr BB. The mother married him three times, but whilst giving her evidence in early 2020, could not recall his family name. Historically, the girls complained of Mr BB intentionally walking in on them whilst they were naked in the bath. The mother agreed to marry Mr Nader without meeting him face to face and said that she did not tell the children of their marriage before the marriage took place. Mr Nader resided full time with the children whereas Mr BB maintained a separate residence. Mr Nader maintains an intact marriage with his wife in Country CC with whom he has five children. The mother and Mr Nader gave evidence that Mr Nader had applied to bring his Country CC family to Melbourne to live, the expectation being that the two families would blend together well, although, as the mother and Mr Nader were cross examined they ceased to suggest that it was feasible for the two families to live under the one roof. The mother’s evidence was that she decided to divorce Mr Nader whilst sitting in Court and hearing what the children had said about him to the Family Consultant. The mother gave evidence to that effect before telling Mr Nader that the marriage was over. In the context of all of that evidence having been given recently, the father’s conclusion about adolescent marriage is not fanciful.
Returning to the Henna tattoos, I acknowledge, as does the mother, that decorating the skin of females with henna is something that may happen for the preparation of brides, so as to enhance their appearance but that decorating the body with henna is not confined to weddings and nor is it compulsory for Islamic weddings. I accept that “henna tattoos”, as the art of temporarily staining the skin with henna dye, is popular with girls who have nothing to do with Islamic religion or Muslim practices. The mother originally described the tattoo as a thin line of decoration from the left elbow down to the tip of one finger. However, upon further questioning, she conceded that the decoration covered approximately one half of the top of each girl’s left forearm, although it was made up of dots and designs and was not solid. The mother conceded, sensibly in my view, that the father would not interpret the henna decoration, which I am confident the girls would have called “henna tattoos”, as attractive or benign.
I am satisfied that the henna tattoos had a significant impact on the father. That the mother conceded in her evidence before me that, in hindsight, it had been unwise of her to have the girls decorated with henna. Such evidence is an understatement of such magnitude that I doubt its sincerity. Given the history of this matter and the fact that the mother knows that the father has an extraordinarily negative view of the Islamic religion, sending the children home to the father with henna tattoos was, at the very least, a provocative and inflammatory act by the mother.
The henna decoration was applied to a highly visible part of each girl which is not regularly covered by clothing. The mother made a specific arrangement for the girls to be tattooed whilst spending time in her home. It was not a spontaneous or, I find, an innocent gesture. It was a manipulative act which would be likely to drive a wedge between the girls and the father because, as much as the girls probably liked the tattoos, the mother could be assured that the father would abhor them and, quite possibly, be unable to shield the girls from the despair and anger he felt at their appearance.
The mother conceded that the tattoo is semi-permanent and would last for a week or more. Alcohol or hand sanitiser would only lighten the appearance of the tattoo and not eradicate it. The durability of the tattoo alone meant that the mother intruded herself in an enduring way into the family life of the father and the children. The father has a fundamental but, in his mind, rational objection to Islam generally and specifically to the mother having used it to effect the marital separation and banish him from the children’s lives for several years. Regardless of whether the father’s attitude to Islam generally is ignorant and out of touch with community experience, it is axiomatic that the father would interpret the henna tattoos as a symbol of religious orientation. Religion featured prominently in the final hearing. Ultimately, there were no injunctions directed to religious observances but my impression is that it was well understood that the mother would not require or encourage the children to pray, dress in an Islamic style or attend mosque and the father would refrain from saying grace in the presence of the children or having them attend church.
Sending the children back to the father with henna tattoos was a destructive and ill-advised act by the mother. It conveyed a message to the father that she could do whatever she pleased with, and to, the children. I am satisfied that, from 24 May 2020 onward, the henna tattoos had the effect of putting the father on very high alert as to the mother’s bona fides, her acceptance of the new parenting arrangement, her willingness to comply with the restrictions imposed upon her in relation to Mr Nader and the forbearance which she indicated she would have in relation to religious practices involving the children.
The father’s evidence was that, by 3 July 2020, D had said to the father that he was afraid of spending time with the mother although he had not indicated to the father precisely why he was fearful. As I mentioned earlier in these reasons at [52], these children are inculcated with parental conflict, they are not transparent nor easy to read. Even though D would not tell the father why he was fearful of going to the mother’s home, I am satisfied that the father reasonably believed that the child could be in some danger.
In terms of whether the father’s non-compliance persisted for longer than is necessary, I note that the father did not interfere with the mother’s electronic communication with the children, on Wednesday for one hour. Indeed, there had been some flexibility shown by the father in terms of extra electronic time with the children between the children and the mother, in particular on the first day of school for the children, and some flexibility in permitting the mother to extend the time with the children by an hour or so on a public holiday in June.
I expect that the children will be upset and unhappy not to be seeing the mother but the issue is how they can see the mother safely, without their relationship with the father being undermined and orders of this Court not being observed.
I have also made procedural orders for the filing of material and subpoenas in anticipation of the return date.
Section 65L of the Act
Section 65L of the Act provides that, when making a parenting order, the Court may make an order requiring that the parties’ compliance with the parenting order, as far as practicable, is to be supervised by a Family Consultant and/or that a Family Consultant give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order. Unfortunately, for many years now, Child Dispute Services has had insufficient resources to service orders under s 65L and my understanding is that any order made under s 65L will not be supported. In my observation, dis-use of s 65L coincided with the shift of privileged counselling from the Court and into community based centres and our expert Family Consultants assuming an exclusively reportable forensic role. However, lack of resources was not the only difficulty with s 65L. There was a lack of direction in orders of the Court and the predecessor of Child Dispute Services were rarely consulted prior to an order being made about the kind of support which was envisaged and available and whether written reports were to be generated. In my experience, with the right co-ordination, s 65L worked very well. Frequently, though, a family member did not know how to activate the supervision or it was sought to be activated when the family was in such difficulty that greater intervention was required.
Making parenting orders alone is often not enough, and rarely enough for the families in the most complex cases with which we deal. Post-order support should be offered to families and the Courts are the logical place for that support to commence, due to the family already being familiar with the environment and the Court would lend some authority to the post-order support. In my view, post-order support would have been to the advantage of the children and parents in this case. There is a disconnect between the amount of resources that are put into setting up parenting arrangements (assessments, Family Reports, defended hearings, judgments etc) and what is done to assist the family, and significantly the children, on the implementation of the arrangements.
Notice of risk of abuse
A Notice of Risk of abuse has been filed by the father on 19 August 2020 and normally would be sent to DHHS. DHHS were previously a party in this case. They are entirely familiar with the case and had ceased involvement save for participating in this case. In my view, the Notice of Risk need not be sent to DHHS. If the parties, or any of them, think otherwise, they can raised the matter with me on the adjourned date.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 August 2020.
Associate:
Date: 8 September 2020
2
2