Pollands and Haberger

[2009] FamCA 280

FAMILY COURT OF AUSTRALIA

POLLANDS & HABERGER [2009] FamCA 280

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN - With whom a child lives – Orders – Variation

Family Law Act 1975 (Cth)

APPLICANT: Mr Pollands

RESPONDENT: Ms Haberger

FILE NUMBER: MLC 1581 of 2007

DATE DELIVERED: 4 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 4 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C.C. Ham

SOLICITOR FOR THE APPLICANT: Madisons Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Chan

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Taylor Splatt & Partners

Orders

1. All applications be adjourned before Justice Mushin at 10:00am on 18 March 2009.

2. Until the said adjourned hearing or further order the children T born … March 2002 and K born …August 2003:

   a.live with the father commencing at 6:00pm this day;

   b.spend time and communicate with the mother between 10:00am on Saturday and 4:00pm on Sunday of each alternate weekend commencing at 10:00am on Saturday 7^th February 2009 with changeovers to take place at the N Police Station; and

   c.the mother communicate with the children by telephone at 6:00pm each second day commencing Friday 6^th February 2009.

3. No later than 4:00pm on 4 March 2009 the mother file and serve any response and affidavit in support thereof on which she proposes to rely at the adjourned hearing.

4. No later than 4:00pm on 11 March 2009 the father and the Independent Children’s Lawyer file any reply thereto together with affidavits in support.

5. No document be filed in these applications save in accordance with these orders or by leave of the Trial Judge.

6. In the event that the mother fails to comply with paragraph 3 hereof any application by her then before the Court be thereupon dismissed without further application and the father’s application proceed on an undefended basis subject to any order of the Trial Judge as to cross-examination and/or the making of submissions.

7. Victoria Legal Aid be and is hereby requested to give consideration to granting aid to the mother for legal representation in these proceedings by virtue of their unusual nature.

8. All questions of costs be reserved.

9. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1581 of 2007

MR POLLANDS

Applicant

And

MS HABERGER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings have come before me in the Judicial Duty List today.  They concern the two children of the parties, T, born in March 2002, aged nearly seven; and K born in August 2003, aged five and a half. 

2. The parties were in a relationship and separated several years ago.  The children have lived in the care of their mother since the parties' separation with significant contact with their father.  Accordingly, there has been a very significant status quo in favour of the mother.

3. In a busy Duty List I was presented before lunch with minutes of proposed orders by consent.  The father is represented today by a very senior member of junior counsel experienced in family law and the mother represents herself.  The children have an Independent Children's Lawyer who has also appeared. 

4. The minutes provided in their essence that the children be, late this afternoon, transferred from the care of their mother to the care of their father and that they live with him, that's by way of final orders.  The minutes also provided that the mother spend time with them on each alternate weekend from 10 am on Saturday until 4 pm on Sunday. 

5. There were two things that troubled me initially about these orders.  The first of them is that I had no basis on which to understand why after a status quo which had existed for virtually the whole of the children's lives such a profound change was being made to their arrangements.

6. The second of them was that the mother's affect with which she presented to the Court was very concerning.  She was visibly highly upset, shaking and in a very distressed state.  That led me to question the nature of her consent to these orders.  When I asked her for that reason she told me that she did not want to talk about it.  She refused to give me any detail and accordingly I was none the wiser.

7. The Independent Children's Lawyer - who came into the case as a result of a previous order and who was only instructed in the last couple of days - was also none the wiser.  She was, in fact, unable to make an informed decision as to whether to support the proposed changes or not.

8. By contrast, counsel for the father was very forceful in his support of the orders.  It is alleged on behalf of the father that the mother has been party to complaints to the Victoria Police against the father which have been investigated and found to be without foundation and similarly with the Department of Human Services of the State of Victoria.

9. Counsel asserted that there was ample substantive reason to justify why the making of the orders would be in the best interests of the children.  On further inquiry of the mother I was unable to glean any further information and prior to adjourning for the luncheon break I advised the mother to talk to the Independent Children's Lawyer.  That has been done and I was advised after lunch that the mother regarded herself as being under duress and that that duress was being exerted by the father and people with whom he was allegedly associated.  In that context a famous family name was mentioned. 

10. Obviously in a Duty List in which I have not taken any evidence I am unable to make any finding with regard to the merits or otherwise of the various assertions.  However, the mere assertion of duress requires me to be concerned about ensuring that the mother is afforded natural justice to the same level as is the father. 

11. These proceedings were commenced in February 2007.  The court made orders on 23 January 2009 when the Senior Registrar ordered that the children spend several days with their father in late January just gone and for each weekend from Friday to Sunday.  Provision was made for changeovers to take place at the S Police Station and the parties were restrained from discussing the proceedings or any of the evidence with the children or in their presence or hearing. The parties were also restrained from denigrating the other or members of their family.  The application was otherwise adjourned before me today in this List.

12. Paragraph 6 of the order required the wife to file and serve any response to the Application for Final Orders, the Application in a Case, and relevant affidavits by 4 pm yesterday.  The only document which the mother has filed in these proceedings is a Notice of Address for Service which was filed on 23 January 2009.  She has not filed any application, response or affidavit and accordingly must be taken not to have participated in these proceedings to any extent other than formally.  She did appear before the Senior Registrar in person on 23 January. 

13. Because I am concerned about the nature of the consent I decided that it is appropriate, having rejected the application to make the final orders by consent today that I give the mother another opportunity to file documents.  She will have 28 days and I note having strongly advised her to do everything possible to obtain legal representation.

14. I will provide that in the event that she fails to file in accordance with the order the proceedings be heard on an undefended basis and they will be adjourned before me.  The undefended hearing in that event will be subject to any right of cross‑examination or the making of submissions, which will be something that needs to be decided at that time.  I will then give a short opportunity to both the father and the independent children's lawyer to reply to any document so filed.

15. That leaves the question of the disposition of the children between now and the adjourned date to be decided.  I read a transcript of the proceedings before the senior registrar on 23 January 2009 and expressed concern about some of the thoughts uttered by the mother during that proceeding.  She has not filed any material in these proceedings, as I have already said, and there is, on the assertion of counsel for the father, significant material with regard to both the police and the Department of Human Services. 

16. I have viewed the mother's affect, which concerns me, and note also having been told that the mother has been considering leaving Australia.  In those circumstances I find that there is an unacceptable risk of the children remaining in the primary care of the mother between now and the adjourned hearing and I will change those arrangements to essentially fit in with the provisions of the consent orders but on an interim rather than a final basis.  Those alternate arrangements will continue until the adjourned date or further order and the matter will then be considered at that time.

17. The orders with respect to not discussing the matter with the children or in their hearing and not denigrating each other previously made on 23 January 2009 by the Senior Registrar will remain in full force and effect.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:  Shantelle Vercoe

Date:  17 April 2009