Pieper and Jesberg & Anor (No 2) - [2020] FamCA 749

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pieper and Jesberg & Anor (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCA 749
Decision Date: 27 August 2020

CaseChat Overview and Summary

In the matter of *Pieper and Jesberg & Anor (No 2)*, Bennett J of the Family Court of Australia considered applications concerning parenting orders, alleged contraventions, and injunctive relief. The proceedings involved the father, the mother, and an Independent Children's Lawyer appointed to represent the children's interests. The court also addressed an application by the father for an injunction against the maternal aunt of the children.

The court was required to determine several legal issues. These included whether the father had contravened specific parenting orders by failing to facilitate contact between the children and the mother, and if so, whether he had a reasonable excuse for any non-compliance. The court also considered the principles governing conflicts of interest for an Independent Children's Lawyer and the evidence required to support an injunction against their continued appointment. Furthermore, the court examined the mother's alleged contraventions of parenting orders and the potential consequences, including the court's power to vary existing orders. Finally, the court addressed the father's application for an injunction against the maternal aunt, considering issues of notice and service.

Bennett J found that the father had contravened one count of the parenting orders by failing to deliver the children to the mother on a specified date, and this contravention was without reasonable excuse. However, the court dismissed four other counts of contravention brought by the mother against the father, finding that he had not failed to comply with the primary order in relation to those counts, or that he had a reasonable excuse. The court noted that while supervised counselling under s 65L of the *Family Law Act 1975* would be beneficial, such orders could no longer be supported due to a lack of resources. The court also addressed an existing personal protection injunction prohibiting the mother from bringing the children into contact with her former partner, noting the mother's apparent lack of seriousness regarding this injunction. Consequently, the mother's face-to-face time with the children was suspended pending a reportable assessment pursuant to s 11F of the Act, with her electronic communication time increased. The father's application for an injunction against the maternal aunt was adjourned pending service on the aunt. The court ordered the Independent Children's Lawyer to file an undertaking and directed a s 11F assessment of the parents and children, with specific issues to be addressed in the assessment report. The mother's contravention application was otherwise dismissed, and the matter was adjourned for an interim hearing on the father's application to vary the final orders.

Orders

Orders of the court

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.

10.

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.

11.

Until further order, the mother’s face to face time with the children B, C and D be, and is hereby, suspended.

12.

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.

13.

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.

14.

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

(d) any place where the children attend for recreational purposes.

15.

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”).

16.

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.

17.

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.

18.

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”.

19.

I adjourn the oral application of the father to the adjourned date.

20.

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;

21.

file and serve a Notice of Address for Service (which can be found on www.familycourt.gov.au in the Forms tab)

22.

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.

23.

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.

24.

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;

25.

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.

26.

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.

27.

The proceedings this day be transcribed and placed on the Court file.

28.

My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

29.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.