PILLAI & DOSHI

[2010] FamCA 146

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI [2010] FamCA 146

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Interim issues
FAMILY LAW – PROPERTY – Injunction for sale of the matrimonial home to preserve equity

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 92-386

APPLICANT: Mr Pillai

RESPONDENT: Ms Doshi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Ambrose

SOLICITOR FOR THE RESPONDENT: Perry Weston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wylde, Townsend Wylde Lawyers

Orders

1. That the application by the husband for interim orders filed 11 February 2010 be dismissed.

2. That all outstanding interim issues are otherwise dismissed.

3. That all applications for final hearing await the appointment by the registrar of a first day of trial.

4. That the hearing on 31 March, 2010 in the Senior Registrar’s List is vacated.

5. That the parties attend a conciliation conference at 9.15am on 14 April 2010.

6. That each party forthwith exchange the relevant documents to comply with Chapter 12 of the Family Law Rules 2004.

7. That by 4.00pm on 12 March 2010, the wife file and serve an amended response setting out with particularity the financial orders she proposes to seek on the final hearing.

8. I direct the file of the Department of Human Services be returned to them.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664  of 2007

Mr Pillai

Applicant

And

Ms Doshi

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Applications by Mr Pillai to whom I shall refer as “the husband” and Ms Doshi to whom I shall refer as “the wife” were heard by me in a busy Judicial Duty List on 24 February 2010.

2. The applications related to both financial and parenting matters.

3. In respect of the parenting matters, the application was by the husband in which he sought to review orders made by Senior Registrar FitzGibbon on 17 December 2009 and 13 January 2010.

4. The orders sought by the wife related to the husband paying a mortgage encumbering the former matrimonial home and failing his payment, the sale of the home with the proceeds being placed in trust pending further order of the Court.

5. This is a difficult and complex factual situation made more so by the fact that the husband was unrepresented before the Senior Registrar and continued his position before me.  It is not unusual in this Court to have parties unrepresented but it is always helpful if they have had legal advice and particularly, advice in relation to the affidavit material upon which they intend to rely.

The wife’s interim application for sale of the home

1. In respect of the financial matters, the wife’s position was that there is a pending property settlement.  On any view, it is a modest dispute because the only asset that the parties have of any significance is the former matrimonial home at W.  Counsel for the wife asserted that the agreed value was about $280,000 and that the property is encumbered by a mortgage to the Westpac Bank of $226,000.

2. The husband lives in the home alone although material I was asked to read suggested his parents were also present. 

3. The two children of the marriage live with the wife in rented accommodation.  The wife’s current financial position is that she is dependent upon an income-tested pension or benefit.  In addition, she receives child support.

4. The husband is employed and earns about $65,000 per annum. 

5. After separation between the parties and up until September 2009, the husband paid the mortgage payment which is around $1300 per month. 

6. About September 2009, the husband ceased making the payment and thereafter sought that the wife contribute one half.  The wife declined not surprisingly having regard to her pensioner status. 

7. On 8 January 2010, the Westpac Bank sent to the wife a default notice.  It is important to note that the bank was and still is aware that the wife is separated from the husband and living at a different address.  On 18 February 2010, the wife received a further default notice from the bank which indicated that unless the total payment of outstanding mortgage arrears was made before 28 February 2010, the bank will commence proceedings against the parties for possession of the property.

8. I am satisfied that the bank is now pressing.

9. It is important to therefore see that the equity which is at risk here is modest on any view and a forced sale may make the potential equity much less.

The husband’s position about the sale

1. The husband’s position was that he was paying the mortgage but the Child Support Agency said that he had to make full payments of his obligations under a child support assessment.  He said that he could not pay both.  He pointed to the fact that there was an agreement that each party would pay their own expenses associated with child support and therefore he could not see any justification for the Child Support Agency adopting the position they did.  When I inquired whether he had sought to review that decision of the Agency, he told me that he had not. 

2. The husband’s position was simple.  The wife should be paying half of the payment on the mortgage because he was paying the child support.  The fact that the taxpayers of Australia were contributing significantly seemed to have been lost upon him.  Equally importantly, he pointed to the absence of financial details in the wife’s financial statement.  I am satisfied however that those facts did not and do not make any difference to the outcome of these proceedings.  It is logical that if the wife’s only income is a Centrelink pension and child support, she is not living affluently.  That is certainly the picture she portrayed in the financial statement.  The husband challenged that.  However, the husband then produced a series of bank statements including statements belonging to the wife which were only some days old.  Those records show that the wife’s income is as she suggests in her financial statement.  Those statements also show that the credit she showed in her financial statement was also correct.

3. The husband pointed to the fact that there was another (or other) accounts.  In the documents that he produced, there were two accounts.  The account other than the one to which I have referred had not shown any statements since 2007 and had a modest balance in it at that time. 

4. The wife has been ordered to provide any bank statements she has and she consented to that arrangement in any event.

Finding as to the current financial positions

1. It is clear therefore that the wife is in a position where she cannot make any contribution towards the mortgage payment.  The husband’s position was that he could not afford to pay the payment either.  He said he had to live somewhere and therefore I could not make an order for the sale of the house.  However, it must be noted that the wife is living on limited funds and paying rental albeit at subsidised rates and the husband is spending over $1300 per calendar month on a house in which he is living by himself.  I am not suggesting he is living affluently either but in circumstances where the obligations for child support stand as an enforceable obligation by the wife because of her dependence upon tax payers funds, it seems illogical for the husband to remain in a home without making the contributions that he should.

2. I inquired of the husband a number of times whether he proposed to rectify the position and he said he would not.  I asked him then whether he saw any alternative to me making an order for the sale of the home and he said I could not.

The law relating to sale

1. Section 114 of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

   (1)      In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

   (a)an injunction for the personal protection of a party to the marriage;

   (b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   (c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

   (d)an injunction for the protection of the marital relationship;

   (e)an injunction in relation to the property of a party to the marriage; or

   (f)an injunction relating to the use or occupancy of the matrimonial home.

   …

   (3)      A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

2. Section 4 of the Act provides the matrimonial cause definition. Relevantly it says that matrimonial cause means:

   (ca)     proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)       arising out of the marital relationship;

   (ii)in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

   (iii)in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104;

3. An application by the wife therefore falls within the definition in s 114 on the basis that there are currently proceedings between the parties with respect to the property of the marriage being proceedings arising out of the marital relationship.

4. Section 114 requires a court to grant whatever order it considers proper with respect to the matter in which the proceedings relate. As such, the court is empowered in an appropriate case to make an order for the protection of property in circumstances where a party is taking action which prejudices the entitlements of the other.

Outcome of wife’s application

1. In this case, having given the husband every opportunity to rectify the position, I am satisfied that it is proper to make the injunction for the sale of the property before the mortgagee takes a step of removing the control of the parties and potentially prejudicing their equity in the property.  The husband’s position as I have pointed out was that he would not assist the wife’s position for so long as she maintained her right to claim child support at the assessed amount.  In my view having regard to the unreasonable nature of the husband’s demand because of the fact that the wife was required by Centrelink to pursue full child support, it is proper to make the order in the circumstances.

The wife’s application for s 106A order

1. Having regard to the stance adopted by the husband, I have little confidence of his cooperation. As I pointed out, he made it clear to me that I could not do what I was proposing to do as sought by the wife and as such, this is an appropriate case to make the orders sought by the wife under s 106A of the Act.

2. Section 106A applies if an order is made directing a person to execute a deed or instrument and that person refuses or neglects to do so thereby requiring the Court to consider the use of s 106A. In my view, if the husband refuses to implement the steps to sell the property for the reasons outlined, it will be necessary to exercise the power under s 106A and accordingly I make that order. For efficacy purposes, the wife through her solicitor can make an application to a registrar supported by an affidavit by the solicitor indicating what steps had been taken and proving that the husband had failed to comply with the directions that I have set out.

Liberty to apply

1. I also have little confidence about the husband’s cooperation in respect of the sale and to that extent, I have given the wife liberty to apply in the event that urgent orders are necessary for the purposes of obtaining vacant possession or for that matter, cooperation in respect of providing the property for the purposes of inspection and sale.

The parenting application of the husband

1. I turn then to the parenting matters.

2. The husband’s application was filed on 11 February 2010.  In it, he sought orders which in essence were as follows:

   ·    The case be deemed very urgent, all times be abridged and it be listed for hearing by a judge;

   ·    All orders of 13 January 2010 be reviewed and set aside;

   ·    Paragraphs 2, 3 and 14 of the orders made on 17 December 2009 by Senior Registrar FitzGibbon be reviewed and set aside;

   ·    That an order made by Riethmuller FM restraining the husband from recording conversations be discharged and that he be specifically permitted to record conversations;

   ·    That the husband have sole parental responsibility for the children S Pillai born in June 2004 and K Pillai born in January 2007;

   ·    That the court list the matter for final hearing on an urgency basis;

   ·    That the wife and her solicitors pay all legal costs of the husband incidental to the review and the applications made on 27 November 2009.

The wife’s position on the parenting orders

1. The wife was represented by counsel.  Her application was that the husband’s application be simply dismissed and that the existing orders stand.

The Independent Children’s Lawyer’s position

1. The Independent Children’s Lawyer appeared and also opposed the husband’s application and sought that the orders made previously stand.

The orders under review

1. On 17 December 2009, the matter came before Senior Registrar FitzGibbon.  Paragraphs 2, 3 and 14 of those orders are the subject of this review.  Those orders read as follows:

   2.That the children thereafter continue to live with the wife in accord with paragraph 4 of the orders made 20 April 2009.

   3.That the time by the children with their father pursuant to paragraph 6 of the orders of 20 April 2009 be suspended until the adjourned date of hearing.

   …

   14.      That the costs of the wife be reserved.

2. The matter was adjourned by the Senior Registrar to 13 January 2010 and on that day, he made further orders.  All of those orders are subject to the review.  The Senior Registrar made the following orders:

   1.That the husband’s time with the children [S Pillai] born … June 1994 and [K Pillai] born … January 2007 pursuant to paragraph 6 of the orders made 20 April 2009 remain suspended until further order.

   2.That the parties do all such things as are necessary to make application to [G] Children’s Contact Service … for the family to use the service for supervised time and once a place is available they do all things necessary to attend any appointments at the Centre and follow their lawful directions.

   3.That until further order once the centre becomes available the husband spend no less than 2 hours a fortnight with the children supervised at [G Children’s Contact Service].

   4.That the wife be permitted to enrol the child [S] at [B] Primary School.

   5.That the husband and the wife attend upon a psychiatrist nominated by the independent children’s lawyer for the purposes of the preparation of psychiatric assessments of each of them.

   6.That the costs of each party’s respective assessment be borne by that party.

   7.That all extant applications be adjourned to 31 March 2010 at 9.45 am in the Senior Registrar’s Duty List.

   8.That the husband is to file and serve a Financial Statement within 7 days.

   9.That there be liberty to apply to relist the matter urgently and including to the Judicial Duty List particularly with respect to paragraphs 5 and 6 of the wife’s Amended Response filed this day and / or to make application to his Honour Justice Cronin in chambers for priority for final hearing.

   10.That the Start-Up Bonus Voucher sent / applied by the husband at [Y] Primary School be applied to [B] Park Primary School and the husband do all things necessary to enable it to occur and the wife be at liberty to provide this order to the Department of Education to support the said voucher being applied to the school at which the child is permitted to be enrolled by paragraph 4 of these orders.

   11.That the costs of the wife of and incidental to these proceedings fixed at $470 be paid by the husband.

   12.That pursuant to Sections 65DA(2) and 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 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.

The husband’s affidavit filed 22 February 2010

1. In respect of the parenting proceedings, the husband filed an affidavit on 22 February 2010. Nothing in that affidavit has any relevance to the issues in dispute and even if there is some remote connection, its probative value is minimal. It is not the function of judges to trawl through affidavit materials which are offensive and scandalous to try and look for material that may be admissible for the purposes of s 55 and 56 of the Evidence Act 1995 (Cth).  It is always the responsibility of a court to try and assist a litigant in person but when material of the nature that I have read in this affidavit is considered offensive not only to the wife, her lawyers, the Department of Human Services and officers of this Court, the material should and must be discarded.  Had the husband obtained legal advice, I have no doubt he would have been advised not to file the material.  Mr Pillai is an intelligent and apparently articulate man if his written word is any indication.  Whilst he may have a persecution complex and have very strong views about the Court, the appropriate channel for his frustrations does not lie in setting out a stream of consciousness that is so offensive.  The document was nothing short of humbug.  I told Mr Pillai that I did not propose to take it into account in determining the matter before me.

The husband’s affidavit material relied upon

1. Having said that however, I have read and taken into account all of the material he otherwise referred me to namely an affidavit filed at Dandenong on 13 October 2009, an affidavit filed on 10 December 2009 and an affidavit filed on 11 February 2010.

2. In addition to those affidavits and at his request, without demur from counsel for the wife or the Independent Children’s Lawyer, I have also read:

   ·    The notes of a subpoenaed police officer who at the request of the husband interviewed his child;

   ·    Various reports by an organisation known as “C” and particularly the reports of 16 September 2009 and 5 October 2009;

   ·    The file of the Department of Human Services involving a long and tragic history of complaints about child abuse but in particular, file notes dated 1 February 2007, 1 April 2007, 4 April 2007, 9 April 2007, 3 May 2007, 11 December 2007, 12 December 2007 and 25 July 2008;

   ·    A family report prepared by a Regulation 7 reporter dated 15 September 2009.

1. In respect of the affidavits to which I have referred, much of what was said was not evidence of probative value.  Again, the husband needs to understand the distinction between evidence of fact and his own opinion which is unsupported by factual material. 

2. For the purposes of these reasons, I have drawn as much material as I can from those affidavits and I have set that out below.  Before doing so, in the busy Judicial Duty List, I endeavoured to find out what the specific points were that formed the basis of the husband’s application for what was clearly a change of parenting orders.  The following matters were provided by the parties.

3. Orders were made on 20 April 2009 for the children to live with the wife and to spend time with the husband.  As such, the husband’s proceedings can only be read as an application to alter or discharge those orders.  The orders made on 20 April 2009 by Baker FM were consent orders.  They were final orders.  Both parties were represented by counsel.  The husband’s time with the children was to be alternate weekends.

The husband’s arguments

Failure to protect the children from harm

1. The husband’s position was that the wife had failed in her duties as a parent, been irresponsible and had failed to protect the children.  That arose because of the wife’s involvement with a professional from C which I was told was a … Church organisation.  As best I can determine, this organisation was acting in some therapeutic capacity under the direction or guidance of the Department of Human Services.  The husband alleged that the wife had effectively permitted a man described as “N” who had inappropriately touched one of the children.

The material to which the husband referred:  the police interview

1. The exact sequence of events is unclear on the evidence but doing the best I can, the husband approached the Department of Human Services as a result of what his daughter told him and he was thereafter referred by the Department to Victoria Police.  The police interviewed the child and the notes of that interview were produced pursuant to subpoena.  The husband asked that I read them and there was no objection by counsel for the wife or the Independent Children’s Lawyer.  Those notes indicated that the husband had requested for the interview to be taped and that request was denied.  Apparently, the police officer was satisfied that notes were sufficient.  The detail of the notes does not matter for the purposes of this judgment because ultimately the police have done nothing further about anything that the child said even if it could be construed as a disclosure of some inappropriate behaviour by another person against the child. 

Denigration of the husband

1. The next matter raised by the husband was a complaint which, in his eyes, warranted a change of residence.  He said that he had been denigrated to the children.  He produced correspondence to the solicitor for the wife requesting that an undertaking be given that the children would be made available and that the wife would not denigrate him or engage a psychologist unless ordered by the Court.  This request for an undertaking was sought at a time where he had refused to return the children.  In other words, he had taken unilateral action which contravened an order of the Court.  The husband also complained about denigration of him by a Department of Human Services social worker.  The detail of that complaint came from one or other of the children in a recording by the husband of the child in circumstances which breached an order of the Court.

Interviews of the children by the Department

1. Another complaint by the husband was that the wife was allowing the children to be interviewed by the Department of Human Services.  Having now had the opportunity to see the file it is almost frightening in this case that there is a huge number of referrals to the Department for intervention in the family.  It is not at all clear to me and I draw no inferences against any person, as to the necessity for the intervention by the Department.  The substance of the husband’s complaint and the basis for the change of residence was that the wife had involved herself with the Department.

The child K attends the family report interview

1. The fourth basis for a change of residence was that the husband attended the family report day on 15 September 2009 and he found K disturbed, frightened and not fed.  The details of that are set out below.  The husband’s observation was that he had never seen his son like that before.  There is no substance to the husband’s allegation if it is intended as a criticism of the wife.

2. Those are the matters that the husband argued were the basis for the change of residence.  The facts themselves as set out below do not necessarily support his contentions but they give a clear picture of the dilemma in this case.

Drawing out the evidence from the husband’s disjointed material

1. The husband did not set out the nature of the relationship between himself and his children other than statements regarding his concern for his daughter’s welfare.

2. The husband’s material referred to the involvement of the paternal grandparents with the children but their role is unclear because both stated in April 2009 that they intended to stay in Australia for a further six months.

3. For cultural reasons or otherwise, the husband made clear that he was critical of the wife’s care of and relationship with, the children. The objective evidence of the Department of Human Services would not support his views. I turn to that evidence below.

4. The husband did not say how he would care for the children nor what would be the likely effects on the children of a change of circumstances.

5. Riethmuller FM had sufficient concerns about the husband’s parenting responsibility to order him not to record conversations with the children. The family report to which I refer below raised concerns about the husband “coaching” the children. These are very young and vulnerable children whose capacity to understand what is being done to them must be limited. The husband obviously saw no difficulty in this “coaching”.

6. The husband referred to the police interview on 30 November 2009 in which he took his daughter to the police station in order for her to make a statement. The notes produced are inconclusive; all that can usefully be gleaned from them is that a man called N touched her on the shoulder. The husband does not see it that way as a result of which he persists in making the claims that he does and accusing the wife of irresponsibility. That approach indicates he does not have a strong understanding of the emotional needs of his children.

7. One of the assertions of the husband to which I have referred was his claim that the wife must have been doing something wrong because when the child K was brought to the family report writer, he was unwell. He said that the child was sick, hungry and grumpy on the way to the interview. He complained that despite that, the child was taken for a walk around the street in the hot sun. The husband saw that as a total disregard for K’s health as well as a “complete lack of insight into the emotional well being of a little child”. These actions were taken by the wife’s support worker. From that base however, the husband concluded  “the respondent [and] the support worker … teaching hate towards” him.

8. The family report writer observed the child and noted that K had a cold on the day of the interview and acted like a toddler with a cold.

9. It is clear therefore that the husband requires the Court to make a determination on his skewed and subjective views about how his wife has been parenting the two children. The evidence does nothing to justify removing the children from the mother but it does highlight serious concerns about his capacity as a parent to such an extent that his time should be altered.

10. The major concerns are that the husband is acting such as to destroy the relationship between the children and their mother and at the same time by his actions, putting the children at emotional risk by planting in their minds adult concepts which they cannot possibly understand.

The family report

1. Previous courts have relied upon the expert evidence of a family report writer. The Independent Children’s Lawyer and the husband made reference to it. I have read that report dated 24 September 2009. Of importance, the following observations were made:

   It is considered that the children are securely attached with their mother with a change in this arrangement not recommended. [The father], despite observations that he remains consumed by his case and court proceedings, is able to demonstrate and express parental love, concern and caring responses to both [children]. Both children were observed to be generally happy and relaxed in his care with [the father] able to focus on the children’s needs. It is acknowledged that his parental relationship with the children is significant to them.

2. The report writer observed also that the husband should:

   refrain from asking leading questions of the children in terms of who loves them most, where they want to live, and making negative comments in relation to their mother’s care of them and living situation. This could be perceived as emotionally manipulative and damaging to the children in the longer term.

3. These statements were made in September 2009 but it would appear that the husband has ignored them.

4. The report writer opined that:

   it is considered to be in the children’s best interests that the current arrangements as specified in the Final Order made on 20 April 2009 continue.

5. Nothing I have read in this limited evidentiary hearing suggests anything other than that the opinion was well-founded.

6. It is very concerning that the report writer observed a good relationship between the husband and the children but that his current approach to the litigation would suggest that he is not taking his responsibilities as a parent seriously. I shall turn to the S 60CC factors below but this is clearly a case where the two primary considerations conflict with one another. The protection of the children must therefore take priority.

The position of the Department of Human Services

1. At the request of the husband, I read the file of the Department which had been produced pursuant to a subpoena. It raises many matters of concern but those to which I refer now are the only matters that I am taking into account for the purposes of this determination.

2. There were a number of anonymous reports of concern noted. They begin in June 2006 and continued to August 2009 at which time, the file had been produced.

3. It seems that the majority of notifications were not substantiated. Two that were otherwise recorded related to multiple issues of failing to provide adequate food and fluid, failure to provide adequate supervision, poor understanding of infant needs, “multiple separations”, severe emotional trauma, not engaging with services, poor family social supports, imminent exposure to harm, domestic violence and poor parenting skills and knowledge. The investigation appears to have taken some weeks but the “last Phase outcome” is recorded as “no further risk of harm”. Importantly, if this related to the wife, the fact is that it occurred prior to the 2009 final consent orders.

4. The file recorded that there was weekly visits and that the father’s behaviour was “very difficult” which was defined as “filming the children” and “not communicating”. The author recorded that the children had been affected by the conflict.

5. There was a reference to sexual abuse arising from a comment by one of the children but the family support worker said it was an innocent statement.

6. I do not propose to set out more detail because there is nothing I have read which would support the husband’s contentions either as to the incompetence of the wife or as to some flagrant dereliction of duty on the part of departmental officers.

Findings on the evidence

1. There are obvious difficulties in making determinations when the evidence cannot be tested. For the purposes of this case, there are some findings I can make.

2. On the evidence therefore, the only relevant issue is whether there is anything happening in the wife’s household which would justify the court making a finding that the wife is an unacceptable risk by her continued association with the welfare authorities. I could not make any such finding on this evidence.

3. Is there any risk to the children in the husband’s care? The answer must be yes based upon what I have found above. To alleviate that risk whist at the same time endeavour to protect the budding relationship between the husband and the children, the husband needs to have his time supervised to stop him doing to his children which he has defiantly said he will not; that is, coach or record the conversations of these vulnerable children.

The wife’s case

1. The wife’s concern was that even if I was to revert to the position prior to the Senior Registrar’s orders such that the husband had the children on an alternate weekend basis, it should be supervised because the children were at risk.  The wife’s position was that the husband is on a “quest for evidence” and he now disregards orders of the Court.  It was asserted by counsel for the wife that the husband told the Senior Registrar that he would not comply with orders.  It is clear on the evidence to which I have already referred that the husband has overheld the children and endeavoured to use them as a bargaining chip.

2. The Senior Registrar made orders for the husband to spend time with the children at a contact centre but it now transpires that the husband will not register for the purposes of that exercise and would not go.  The wife for her part has registered but there is little point unless the husband will also attend.

3. When I inquired of the husband why he would not go to the contact centre, he said that he refused because the centre was isolated, deserted and inappropriate.  He said he was not willing to pay to see his children.

4. In summary therefore the wife’s position was that the children were at risk in the presence of the husband because of his approach.

The Independent Children’s Lawyer’s submission

1. The Independent Children’s Lawyer supported the continuation of the orders.  She confirmed what counsel for the wife had said that the husband told Senior Registrar FitzGibbon that he would not give an undertaking to comply with existing court orders.  That occurred in December and according to the Independent Children’s Lawyer nothing changed when the matter went back before the Senior Registrar in January 2010.

2. The Independent Children’s Lawyer expressed serious concern for the children about the approach adopted by the husband because at this stage, they are not seeing him at all.  The Independent Children’s Lawyer pointed to the fact that the children had a good relationship with both parents and that comes through the family report to which I shall refer below. 

3. The Independent Children’s Lawyer said there was no basis to change the orders made by the Senior Registrar but importantly, did not support a position where the husband had responsibility for the children removing them from the wife.  It must also be said that that position therefore meant that the Independent Children’s Lawyer did not adopt a position whereby the existing orders prior to the intervention by the Senior Registrar continued.

4. When I queried whether or not there was any point making a contact centre order when the husband said he would not attend, the Independent Children’s Lawyer suggested that I should make the order in case the husband changed his mind.  Having regard to the provisions of s 60CC(4), I propose to make the order to indicate to the husband that albeit he does not like what is being suggested, the children need an opportunity to spend time with him in a protected environment regardless of what position he adopts.  The only option presented to me was the contact centre.  The husband did not offer any other proposal which is not surprising having regard to the fact that he said that the children should live with him on a permanent basis.

the law

1. In Goode & Goode (2006) FLC 92-386, the Full Court referred to interim hearings and said that:

   (T)he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make. 

2. Much has previously been said about the fact that when making a parenting order, the court must apply a presumption of equal shared parental responsibility (see s 61DA). If applied, that presumption requires the court to contemplate a number of scenarios for children the first of which is that they should live with the parties equally in terms of time.

3. In Goode, the Full Court said:

   While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed.  First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable.  Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable.  Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.

   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.

4. Section 61DA(3) says:

   When the court is making an interim order, the presumption applies unless the court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.

5. For reasons which I have set out earlier, in this interim hearing, it is not appropriate to apply the presumption. As such, it is not necessary or appropriate to contemplate equal shared time or significant and substantial time between the husband and the children.

6. Section 60CA provides:

   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.

7. Section 60CC(1) provides:

   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).

8. I have endeavoured to set out my findings in relation to each of the matters required by s 60CC. There is a conflict between the children having the benefit of a meaningful relationship with both parents and the requirement of the court to protect children from harm. To simply remove the children from the wife on the basis of the husband’s view has risks associated with damaging the relationship between the wife and the children. The husband gives the very strong message that the children should not be in her care. I have no confidence that he would promote the wife as a significant person in the lives of the children. I am very concerned that the husband does not see the danger in recording and coaching the children at their ages. He made clear his purpose was to obtain evidence that was otherwise being ignored by all other authorities. I reject his view as unsubstantiated.

1. The findings indicate a lack of responsibility and capacity on the part of the husband and there is no similar evidence relating to the wife.

2. The husband’s approach to child support was made clear when he indicated that there was an agreement that each would and should support the children and their expenses when they had the children. If that is his view of life, he has much to learn particularly where the wife is dependent upon government assistance.

Conclusion

1. Finally, I turn to the parties’ respective applications.

2. There is no basis for me to alter the orders of the Senior Registrar save for the one I have mentioned below.

3. There is no basis for me to alter the orders of Riethmuller FM.

4. There is no basis for me to make orders that the husband have sole parental responsibility on an interim basis to the exclusion of the wife.

5. There is certainly no evidence that the husband is entitled to any costs.

6. The wife’s application supported by the Independent Children’s Lawyer, sought a dismissal of the husband’s application. I agree with her position.

7. The Senior Registrar ordered that the case be brought back before him on 31 March 2010 for the purposes of a further hearing at which time the psychiatric assessments may have been completed. There seems little point in that return date because the husband has made his position about future contact with the children clear. Even if a psychiatric assessment determined that his forthright views were not caused by some health problem, his approach to parenting on the evidence thus far presented, would suggest that interim hearings are pointless when comprehensive examination of the evidence cannot occur. As such, I will vacate the return date and direct that the other orders stand and the case can await a comprehensive hearing.

8. The parties have an outstanding property dispute and the Senior Registrar referred at paragraph 55 of his reasons to the obligations of both parties. The husband filed an application for those orders on 13 October 2009. Despite filing two amended responses to the husband’s application including the last one in January 2010, the wife does not seem to have addressed the property issues other than to seek to have the issue determined after disclosure. It would seem that there is little evidence that needs to be gathered and the wife should particularise her claim now. The orders I have made relating to the sale of the home will crystallise the pool of assets for division. The parties should also attend a conciliation conference which I will order.

9. The husband’s application must be otherwise dismissed.

I certify that the preceding Ninety Eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 2 March 2010