Polson & Polson & Anor

[2010] FamCA 1262

FAMILY COURT OF AUSTRALIA

POLSON & POLSON AND ANOR [2010] FamCA 1262

FAMILY LAW – CHILDREN – sole parental responsibility – live with – spend time with only in accordance with the prior written agreement between mother and father – appointment of Independent Children’s Lawyer

FAMILY LAW – INJUNCTION – restraint from spending time with children until further order otherwise than in accordance with order – s68C

Family Law Act 1975 (Cth) - sections 68B, 68C, 114AB

APPLICANT: Ms Polson

1st RESPONDENT: Mr Polson

2nd RESPONDENT: Mr J Polson

FILE NUMBER: SYC 1511 of 2010

DATE DELIVERED: 11 August 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 11 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Moylan Family Lawyers

1ST RESPONDENT: No appearance

SOLICITOR FOR THE 2ND RESPONDENT: John R Quinn & Co

Orders

IT IS NOTED

1. There is no appearance by or on behalf of the husband today.

IT IS ORDERED

1. That orders be made in terms of the document titled Minute of Interim Orders marked Exhibit 1, save for paragraph 16. 

1. That until further order, orders are made in terms of paragraphs 1 and 2 of Annexure B to the Amended Initiating Application of the wife filed 17 May 2010 as set out hereunder:

1.That the Applicant Mother have sole parental responsibility for the children V born … November 1997 and G born … November 1997 (“the children”).

2.     That the children live with the Applicant Mother.

1. Until further order the children spend time with the husband only in accordance with the prior written agreement between the father and the mother.

1. The husband is restrained from spending time with the children until further order otherwise than in accordance with that order.

1. The Court noted that that order is an order under Section 68C of the Family Law Act 1975 and implies a power of arrest without warrant in the police.

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children C born … January 1994, V born … November 1997 AND G born … November 1997

1. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

1. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of the making of this order within 24 hours.

1. Each party make available to Legal Aid New South Wales, as soon as practicable, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

1. That the parties facilitate the attendance upon their representative of the children at times and dates requested by the representative.

1. The Court requested the assistance of the Principal of School L in facilitating a meeting between C’s lawyer and C at times and dates requested by the Independent Children's Lawyer.

1. That a sealed copy of these orders be served on the father by ordinary pre-paid post to his last known address within seven (7) days from today’s date.

1. Leave is granted to any party interested in the welfare of the children to apply on giving seven (7) days’ notice to the Court and to the other parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Polson & Polson is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EXHIBIT 1

…

BY CONSENT OF THE APPLICANT WIFE AND THE SECOND RESPONDENT AND ON AN UNDEFENDED BASIS ON BEHALF OF THE RESPONDENT HUSBAND IT IS ORDERED:

1. That the orders sought by the Applicant Wife in her Application in a Case filed 30^th July, 2010 be dismissed.

1. That the Second Respondent instruct [Accounting Firm P] of [M], to prepare the tax returns for [E Pty Ltd] for the tax years 2005 to 2010 inclusive.

1. That the costs of the preparation of the said tax returns set out above be paid in the first instance out of the rentals as set out in Order 7 below with the ultimate costs of the preparation of the returns to be determined by the Trial Judge.

1. That the Second Respondent and the First Respondent do all acts and things and call all meetings and pass all resolutions as may be necessary to direct [S Pty Ltd] to pay all rent collected by that company to a bank account to be opened by [E] Pty Ltd.

1. That the First Respondent be restrained from receiving rent from the premises known as [Property N] pending further Court order.

1. That the Second Respondent and the First Respondent do all acts and things and call all meetings and pass all resolutions as may be necessary to open a bank account (the rent account) for the purpose of receiving rent from the [Property N].

1. That the Second Respondent and the First Respondent do all acts and things and call all meetings and pass all resolutions as may be necessary to pay from the said rent account:

(a)all water rates, council rates, insurance and other reasonable outgoings of the [Property N];

(b)payment of the reasonable expenses of the accountant preparing the tax returns for [E] Pty Limited (order 2 hereof) in the event of default in payment of the accountant's reasonable charges by the Applicant Wife and the First Respondent pursuant to order 3 hereof.

1. That the First Respondent be restrained from operating the said rent account.

1. That the Second Respondent be appointed sole trustee for the sale of [Property N] that the Second Respondent forthwith do all acts and things necessary and sign all documents, deeds, instruments and writings necessary to place the property known as [Property N] (“the property”) on the market for sale by private treaty.

1. In the event that the property is not sold by private treaty within six (6) months from the date hereof the Second Respondent shall do all acts and things and sign all documents necessary to cause the sale of the property by public auction.

1. With respect to the sale of the property either by private treaty or public auction the Second Respondent shall do all acts and things to give effect to the abovementioned orders including but not limited to:

(a)Place the property with [Real Estate Agency M] (hereinafter called "the real estate agent or the auctioneer") for the sale of the property at the earliest possible date.

(b)Execute all documents requested by the real estate agent or the auctioneer for the sale of the property.

(c)Request the real estate agent or the auctioneer to recommend a reserve price to be placed on the property for the purpose of the auction sale and accept such recommended reserve price.

(d)Pay to the real estate agent or the auctioneer any sum requested for advertising expenses in relation to the sale.

(e)Give such instructions as are necessary to John R. Quinn & Co., Lawyers for the preparation of a Contract for Sale in conjunction with Moylan Family Lawyers and for the Contract for Sale to be made available to the real estate agent or the auctioneer and to carry out the conveyancing of the sale of the property and to apply the net proceeds in accordance with these orders.

(f)Attend at the auction sale of the property and negotiate with the highest bidder in the event that the reserve price is not reached.

(g)Consider the advice of the real estate agent or the auctioneer as to the acceptance of a reasonable price less than the reserve price.

(h)Execute the Contract for Sale.

(i)Co-operate in every way with the real estate agent or the auctioneer in relation to the sale of the property including making a key available, allowing inspection of the property at all times requested by the real estate agent or the auctioneer and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers.

(j)Execute all other documents necessary to complete the sale.

1. In the event that the property is not sold:

(a)at an auction pursuant to these orders;  or

(b)within seven (7) days of the date of such auction by negotiation with the highest bidder at such auction,

the Second Respondent do all acts and things and execute all documents necessary to cause to be held a further auction of the property within three (3) months after the date of the first auction.

1. Upon the sale of [Property N] the proceeds of sale be paid in the following manner and priority:

(a)Payment of agent's commission and auction expenses including advertising fees reasonably charged by the agent in facilitating the sale of the said property if any due on the sale of the property.

(b)    Upon the provision of documentary evidence to the wife that [E] Pty Ltd has an overdraft liability of $10,000.00 plus any accrued interest in payment of the said overdraft owing to ANZ Banking Group [Suburb B].

(c)Payment of legal costs on the sale of the property.

(d)Water rates, council rates and other applicable conveyancing adjustments.

(e)Payment to the Second Respondent for any monies reasonably expended by the Second Respondent in making the property ready for sale together with reimbursement to him for his time in complying with this order and advertising costs paid by the Second Respondent.

(f)Balance to be held in a controlled monies account by John R. Quinn & Co pending further order of the Court.

1. That the First Respondent forthwith produce to the solicitors for the Second Respondent the title deed for [Property N].

1. That leave be granted to serve a copy of these orders on [Accounting Firm P] and [S] Pty Limited and the ANZ Bank.

1. Not made.

1. That in the event that any of the parties refuses or neglects to comply with the provision of any order herein the Registrar of the Family Court at Sydney is hereby appointed pursuant to Section 106A of the Family Law Act to execute all deeds and documents in the name of either the Applicant Wife or the First Respondent or the Second Respondent and do all acts and things necessary to give validity and operation to the said order.

1. That the parties do all acts and things as may be necessary to appoint [Mr O], Licensed Valuer, as single joint expert to value the property situated at 19 Fletcher Street, Bondi in the State of New South Wales with such costs to be paid at settlement of the proceeds as to one-third each.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1511 of 2010

Ms Polson

Applicant

And

Mr Polson and Mr J Polson

Respondent

REASONS FOR JUDGMENT

1. There are applications for various orders.  There is an issue between the husband and wife and the husband’s brother.  Orders have been agreed between the wife and the husband’s brother.  They are sought on an undefended basis against the husband.  There is no appearance by the husband today.  I am satisfied that he has notice of the character of the orders that are sought against him today. The orders do no more than crystallise an asset, preserve the equity and provide for the orderly realisation of the asset.  So they are not determinative of a substantive distribution of funds.  It’s appropriate to make the orders. 

2. The document entitled Minute of Interim Order is exhibit 1 and I make orders in terms of that document, save for paragraph 16.

1. There are proceedings in relation to three children, C, who is 16 years of age and V and G who are 12.  The parents, the mother and father are 42 and 43 years of age respectively.  They started to live together in 1992, were married in 1993 and separated on Remembrance Day last year.  There are no orders in relation to the children.  As things stand, C lives with the father and the evidence suggests that they live with members of his family at a property at Suburb T.  The twins substantially live with the mother.  An apprehended violence order issued initially in November 2009.  Then it was extended and final orders were made on 1 July 2010 naming the twins and the mother as protected persons. 

2. The father has not taken part in these proceedings.  He filed some documents but has not attended. Earlier today, I made some orders undefended against him in relation to property proceedings. 

3. A Family Consultant has seen the mother and has reported the concerns expressed by the mother.  The mother filed an application seeking that the father have time with the younger children each Sunday from 8.30 am to 5.00 pm, or as otherwise agreed.  As a result of various incidents, the mother no longer seeks an order for specific time. She seeks an order that the father’s time with the twins be in accordance with a written agreement between herself and the father. She wouldn’t oppose the making of an order that he be restrained otherwise from spending time with those children, nor that that order be noted as an order for the personal protection of the children.

4. The father does not have notice of those orders.

5. There have been violent incidents involving the mother.  Earlier this year the children were thrown out of the father’s household. The mother found them crying while walking down the street on their way to some friends’ place.  On that, occasion the father is likely to have been intoxicated. He said abusive things to the children and was otherwise irrational. The father made an attempt at suicide by ingesting rat poison.  The police had great difficulty subduing him.  They used a taser on him and needed to get a knife away from him.  The father seems to have been scheduled. He was taken to hospital. He stabbed himself 60 or 70 times with a safety pin. The father told the hospital that the 16 year old child, C, was sleeping in his bed. The father retained G on 9 August. I gather there was an arrangement, not involving the mother, for the child to stay with the father. On the next day the mother attended at School W where G goes to school.  The child was very upset and told the mother he was sorry. He said “They organised the whole thing on Sunday night when we went to the football with dad.”  “Why didn’t you tell me?” said the mother.  “I didn’t want to hurt you.  I’m really intimidated by [C] and dad.  They make me nervous and put pressure on me.  I find it impossible to say no.”  During the previous week, the mother remembers that G had said to her, “What would happen if they,” referring to the father and C, “kidnapped me? 

6. That brings us to yesterday. It was agreed between the parents that G would spend Tuesday night with the father and then come home today.  The mother asked G, “Are you going to be okay telling dad that you want to come home on Wednesday night?”  G said, “Yes.”  The mother says she is very concerned at there are no current Family Court orders in place. She is concerned that the father and C will continue to try and use emotional blackmail to coerce G and V into spending time with the father. “Whilst I previously had no objection to the children spending time with [the father], I am now concerned that the children will not be returned to me at the conclusion of that time.”

7. In fact, I think the mother’s fears go beyond that.  She is concerned about the children in the father’s care and that would be consistent with the facts.  The mother is in something of a bind because the children obviously love their father and, subject to them feeling safe, have wanted to spend time with him. That left the mother with a problem. On the one hand, she wants to promote their safety and, on the other, to respect their wishes which she acknowledges will increasingly be influential in relation to their living arrangements. 

8. I am to make orders in the best interests of children.  These are interim proceedings and I cannot make findings of fact on disputed issues. As a technical matter, we know the father doesn’t oppose the orders that the mother wants because he is not here. The interim orders she wants are that she have sole parental responsibility for the children. He doesn’t oppose that. She seeks that the children live with her. He doesn’t oppose that. The other order she formally sought and of which he has notice, is that the children spend time with the father each Sunday from 8:30 am to 5:00 pm. Those were the orders she sought in May.  The events leading up to that time, confirmed by problems since, suggest that at the moment, it is not unambiguously in the best interests of the children that they spend time each Sunday with the father.  What is in the best interests of children is assessed by reference to criteria set out in the legislation.  The benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence. 

9. They are the primary considerations, and the tension between those is the issue here.  At the moment, I cannot be confident that spending time with the father will promote a meaningful relationship with him. It would not be a meaningful relationship if the children are abused or afraid or taking responsibility for their father and he is not well. It is obvious to say that enormous harm could be done to them if the father harmed himself or somebody else, particularly in their presence.  As to the additional considerations: any views expressed by the children, and factors such as the children’s maturity and level of understanding the Court thinks are relevant.

10. Documents have been provided by schools attended by the children but the schools object to inspection. In my view there is sufficient evidence before me today to justify the orders that I propose to make, without looking at that material. However, I would say to the schools, I understand the concern about the integrity of a therapeutic relationship between a therapist and a child, but if a court makes orders about the best interests of a child without relevant information there is a risk of a poor outcome for children. I haven’t looked at some documents, today produced by the school attended by C, because the documents don’t relate to her, any mental health or psychological assessment of her, but I would if they had, notwithstanding the objections of the school.

11. In relation to School W, I am told the headmaster would like to attend and argue the point.  As I say, I don’t think, on the basis of the documents I have here, I need to have access to that information, but only the headmaster presumably will know whether that material would assist in relation to the decision that I am being asked to make today. I gather that the claim is not a matter of legal privilege but a matter of the court, in its discretion, being careful about sensitive material.

12. In a sense, the children’s views don’t matter.  If it’s dangerous for them to spend time with their father, then if they wanted to do that, that wouldn’t be a reason for allowing them to do it. If it not dangerous for them to spend time with their father, then the fact that they didn’t want to go wouldn’t be determinative of the issue in any event.  Because the issues here are so important, their views aren’t going to be determinative.

13. As to the nature of the relationship of the children with the parents and others, I can’t make a finding about that. The parties have acted consistently with the younger children having a primary attachment with the mother, but there is no way of assessing that or making a finding about it. The parties have acted consistently with C either being of an age where she can make her own decisions about these things or her having a primary attachment with the father.  The evidence is very alarming in relation to her and although, in the normal course if there is no pathology in a child’s development and a child is of normal maturity and acting in a sensible way, then one would increasingly respect the views of a 16 year old child.

14. The evidence suggests that she is taking up her father’s case, taking responsibility for her father and, in relation to this most recent incident, involved in taking steps with G that weren’t in his best interests, or indeed what he wanted.  So there is a great concern in relation to that.

1. The ability of the parents to facilitate a close relationship between the children and the other parent; it is not possible to make a finding about that. 

2. The effect of changes in circumstances, including separation from a parent or others. The child, G, was retained outside the terms of an agreement struck between the parents and that had a disadvantageous effect on G. 

3. The practical difficulties and expense of a child spending time with the parent, don’t really apply here. 

4. The capacity of the parents is very much an issue, at least in relation to the father.  Parenting is a complicated and difficult task and if somebody is distracted, whether it is because of substance abuse as is alleged to occur here in relation to alcohol, or whether there is a psychological or psychiatric illness as is suggested might have applied here in relation to the father’s suicidal ideation, then that impairs capacity for parenting. 

5. The maturity, sex, lifestyle and background of the children:  I don’t think there is anything particularly to be said there, except that C is of an age where her wishes are going to be hard to get around. 

6. As to the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents;  the only evidence, the unchallenged evidence, is that the children are in harm’s way in the father’s household.  He has not been able to insulate them from his own concerns and indeed, the children have been verbally abused by him, threatened by him and rejected by him. One would imagine that some harm has come to them as a result of that conduct. 

7. Any family violence order that applies: The children and the mother are protected persons under an order made In July 2010. The fact of those orders suggests that this court needs to act. The orders that the mother now proposes would leave her as the gatekeeper for time and I appreciate, as her counsel said - the mother is in a very difficult position. She is an expert in this man. She has been able to make assessments about him on a daily basis. She knows the children and it may be that the tidiest solution is if she can assess proposal by proposal whether and under what circumstances, time should be spent between the children and the father.

8. I am a bit uncomfortable with that, as a bare order, because the father has shown himself to be somebody who can stand in defiance of the authorities.  He remained locked in his house; the police had to force entry; they were required to deploy a taser to subdue him; there have been incidents of self harm; and the hospital records show that he had to be sedated more than once.  So it seems to me that there needs to be something that will react, in a fairly timely way, to a problem arising in the living arrangements of these children. The legislation makes a provision for that in an order for the personal protection of the children.

9. There is an issue about the double jeopardy provisions in relation to orders under section 114 or 68B, but they are triggered by, in this case, the mother taking a step in relation to the apprehended violence proceedings in respect of herself, not in relation to the children.  So, although there is an apprehended violence order in place, it’s in terms that:

   The defendant must not go within 10 metres of the premises at which the protected persons may from time to time reside or work or other specified premises.  The defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purpose of education or child care or other specified premises.

10. I would have thought that prevents the children staying overnight in the father’s home. I don’t know that that is the view taken by police from a comment on their file. So the literal protection of the words in the apprehended violence order do not seem to be providing the sort of protection that the mother might have expected. So I don’t think there is a double jeopardy problem under section 114AB. In section 68B, I can make an order for the best interests of the children and if it is for the personal protection of the children, section 68C implies power of arrest without warrant.

11. No orders are sought in relation to C.  She is 16 and a half years of age.  I am told that she hasn’t cooperated with the school counsellor.  The school counsellor said there has been a preliminary session but no therapeutic intervention.  The father says that he sleeps in the same bed with her.  The mother says that she is likely to have been involved in the retention of G against his will.  G says that he can’t stand independent of C. 

12. It seems to me that it would be appropriate that a further attempt be made to see if C understands what rights she has and, for the purposes of this Court’s jurisdiction, it would be of assistance to know whether she wants or doesn’t want some assistance.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 11 August 2010.

Associate: 

Date:  10 March 2011