Prantage and Prantage - [2014] FamCA 541

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2014] FamCA 541

FAMILY LAW – Urgent proceedings – oral application by husband for interim change of residence of children aged 15 and 12 – legislative pathway – where not in the best interests of the children for residence to change – oral application by wife for power of arrest to attach to existing injunction – order under s 68C made – costs – indemnity costs not appropriate – costs ordered.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 68B, 68C, 117(2A)

Prantage & Prantage (2013) 49 Fam LR 197

APPLICANT:

Mr Prantage

RESPONDENT:

Ms Prantage

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

17 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Prantage in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

Orders

(As amended 22 July 2014)

IT IS ORDERED THAT

1.The wife and the husband each have leave to make oral applications to the Court as follows:-
a) As to the husband, for an urgent variation of parenting orders so that the children M born … 1998 and D born … 2002 (“the children”) reside with him and spend time with the mother only a supervised basis;
b) As to the wife, on the basis that the children are immediately returned to her care with a power of arrest pursuant to s. 68C of the Family Law Act 1975 attached to the injunctions provided for in paragraphs 5 and 8 of the Order made on 2 March 2012.
2.The father’s oral application for interim parenting orders is dismissed.
3.It being the case that pursuant to paragraphs 5 and 8 of the Order made on 2 March 2012 (which is attached) there are injunctions in force against the husband under section 68B of the Family Law Act 1975 for the personal protection of each of the children, pursuant to section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the husband has breached the injunctions (or any of them) the police officer may arrest the husband without warrant and the husband be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Family Law Act 1975 , or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

IT IS DIRECTED THAT:

4.My Associate send a copy of this Order to the Marshall of the Family Court of Australia electronically.
5.The documents deposited by or on behalf of Dr NZ with the Subpoenaed Documents Clerk of this Registry of the Court remain in the possession of the Subpoenaed Documents Clerk with both parties entitled to inspect those documents under direct supervision by arrangement with the Subpoenaed Documents Clerk.

IT IS FURTHER ORDERED THAT:

6.Any person wishing to make a submission in relation to the documents produced by Dr NZ do so by not later than 10.00 am on Tuesday 22 July 2014.
7.My reasons for decision be transcribed and when settled be made available to the parties.
8.The husband pay the wife’s costs of and incidental to this day fixed in the sum of $4,725.00 and such costs be paid within 30 days.

IT IS FURTHER DIRECTED THAT:

9.The copy of the interim intervention order granted on 8 July 2014 to the husband with the wife as respondent be marked “Exhibit A” and remain on the Court file.
10.The copy of the interim intervention order granted on 8 July 2014 to the husband’s father, Mr Prantage Snr with the wife as respondent be marked “Exhibit B” and remain on the Court file.

AND IT IS NOTED that this matter is listed for delivery of my reserved judgment on Wednesday 23 July 2014 at 10.00 am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11263 of 2008

Mr Prantage

Applicant

And

Ms Prantage

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

This matter comes before me this afternoon urgently and without anyone having a formal application in circumstances where the husband has entered the Registry with the two children, M born in 1998 and D born in 2002, in spite of extant orders that he have no time or communication with either of them and the wife has not consented.
In these reasons I will refer to the father and the mother as the husband and the wife.
These proceedings have a very long history. I have indicated through my chambers staff to the parties that on Wednesday of next week or thereabouts I will deliver my outstanding decision in the pending proceedings in which the issue is whether the husband ought to be able to institute parenting proceedings in this Court without leave of the Court. The parties have had notice of that date for delivery of my decision for some time.
There are final property proceedings set down for hearing before me later in the year and in relation to that the wife yesterday filed and served an affidavit of her evidence-in-chief, and counsel for the wife has read some parts of that out to me and it appears that she, in some places, sets out material in relation to the children. Significantly, that was served on the husband yesterday.
The current orders in relation to parenting arrangements are the final orders made on 2 March 2012 by Justice Cronin. They were orders made by consent, when the wife was represented by Ms Smallwood and the husband was represented by Ms Benjamin of counsel, an experienced member of the Victorian Bar.
The orders provided for the wife to have sole parental responsibility and for the children to live with her. Significantly, the orders also provided, and for the purpose of the transcript I set out paragraphs 5, 8 of the order.
5) The Husband by himself his servants and agents be and is hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to text messages, email, Facebook or any other form of social communication save for the provisions in Orders 7 ad 9 herein.
8) That in the event that either of the children contact the Husband and/or attend his home and/or attend the home of the paternal grandparents, the Husband do all things required to ensure the children and/or child is returned immediately to the home of the Wife.
There is some controversy about what has transpired today, but there are also some matters which are not controversial.
The children woke up in the wife’s house, which is where they live. The husband says that at approximately 8.45 am he was contacted by his parents, who live in Suburb E, and advised that the children, D and M, were with them. I may have that wrong. It might have been M who contacted the husband from the grandparents’ home or the grandfather who contacted the husband when the children arrived. In any event, the husband’s evidence is that he was contacted from the home of the paternal grandparents and the paternal grandparents said that the children were with them. The husband left his home in Reservoir having arranged to meet the children and the paternal grandparents at the office of a solicitor from whom the husband had been receiving advice.
The husband said from the bar table that once he arrived the children complained that:
·they had been locked up by their mother;
·they had been abused;
·they had been denied their freedom; and
·they “cannot stand living in that place any longer” under the mother’s conditions.
As indicated, the husband met the children and the paternal grandparents at the offices of Mr VN, legal practitioner, in Suburb HC, which is fairly close by to Suburb E. The husband said that Mr VN spoke to M. The husband did nothing to stop M speaking with Mr VN nor did he direct Mr VN not to speak to her. The husband says that he was advised by Mr VN that he should come to the Family Court immediately and make an urgent application, if he wanted to do so, for the children to live with him. The husband considers that he has followed that advice although he has not prepared an application.
The wife doesn’t contradict much of the husband’s evidence of what transpired this morning, I suspect in no small part because she has no personal knowledge of most of it. However, the wife does say that upon her being notified that the children were actually in the precinct of the Court with the husband, she rang the schools attended by both of the children. She was advised by WG School, where D is enrolled as a student, that he was still in the school grounds. That appears now to have been incorrect. She was also told that he had ‘signed in’ at school and had attended for at least some part of the school day and there is some doubt about that now as well. In relation to Suburb E High School, which is the school at which M is enrolled, they told the wife that M had attended school that morning, gone to the first school period but then disappeared. It seems to me remarkable that the respective schools did not communicate the absence of each child to the wife as part of regular procedure but, it appears, that they did not.
The husband sought permission to make an oral application for the children to live with him and for the wife thereafter to have only supervised time with the children.
The wife, through Ms Smallwood of counsel, made an oral application predicated on the children being returned to her client’s care immediately. She seeks that a power of arrest pursuant to s 68C of the Act apply to the injunction, which is set out in the order of 2 March 2012 and extracted earlier in these reasons. Section 68C provides:
(1)If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii)harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
Note: Section 122AA authorises the use of reasonable force in making an arrest.
(2)For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
(3)Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:
(a)the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and
(b)the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted.
Neither party objected to the other party making an application orally. I have permitted both parties to proceed with their oral applications and for that purpose, I relieve each party from compliance with any rules of court to the contrary.
The evidence in support of the husband’s application was given by him orally. I’ve set out some part of it earlier in these reasons in dot point form. I indicate that the husband did not say much more on any of those topics than I have recorded. He confirmed what he said at the bar table was true and correct. Additionally, he said that the children have reported to him that Dr NZ has threatened them in terms that, if they do not begin to communicate with their mother, they will never be allowed to see their father again.
He also said that the children had seen
…several emails between [Dr NZ] and the wife in which [Dr NZ] advocates the wife screaming and yelling at [D] and that she will tell and instruct the mother how to do so on the next occasion they meet –
or words to that effect.
The husband says that today the children said to him that they would refuse to go back to the wife and they will, “run away until someone hears our voices”.
I heard evidence by telephone link from Dr NZ, psychologist. Dr NZ is the psychologist who is in charge of the children’s therapy, although that therapy has been temporarily suspended pending completion of the proceedings in this Court and the completion of an investigation by the Department of Human Services (“DHS”) which is about to be closed, or if not already closed. Dr NZ contextualised the email, which the husband described in his evidence. She said that she had advised the wife that the wife should consider dealing much more firmly with D; that there are distinctions between how she would advise the wife to deal with M and how she would advise the wife to deal with D.
Some of the distinguishing features include the fact that the Department of Human Services has entered into a contract with M to regulate M’s behaviour in a certain way. Dr NZ considers that M’s agreement with DHS is a check on M’s behaviour and one which the wife does not want to interfere with at this point. But there’s no such agreement with D, and if he acts in a disrespectful, naughty or silly manner, Dr NZ’s advice to the wife was that he should be censured for it and that the wife chastising him with a raised voice is likely to be most effective.
Dr NZ confirmed that, once the decision in this Court is handed down and any investigation by the Department of Human Services is completed, intensive therapy should start in relation to the children again.
Dr NZ mentioned that there had been a number of complaints by Mr Prantage about her to professional associations and boards, and she agreed to send those to the Court to be filed with the subpoenaed documents clerk.
Dr NZ’s evidence was that, in her assessment, D is vulnerable to being dominated by M and that this is now occurring, much to D’s detriment. For instance, M knows that her contract with DHS precluded her being able to desecrate the wife’s shrine to the maternal grandmother so M had commenced telling D to desecrate the shrine.
Mr Prantage was afforded an opportunity to cross-examine Dr NZ and he did so. In my assessment, Dr NZ’s evidence was not shaken in any respect. Dr NZ’s evidence was that during the investigation by DHS and despite the children’s terrible behaviour, there had been indications and hints that the children have some tender feelings towards their mother. Dr NZ described one example of the wife purchasing clothing for M and slipping a note to M inside, which M had kept and read instead of throwing it out. Dr NZ also gave evidence that she firmly believed that over the past twelve months the husband had secretly communicated with the children, not only because of his presentation with the children in the Court building, but also because the husband’s “online rants” and his complaints about Dr NZ to the psychologists registration board anticipated the next deterioration in the children’s behaviour. Dr NZ stated that one example was that the husband had complained that the children were not eating in the wife’s care, which was then followed by the children refusing to eat. Dr NZ’s evidence was that the children’s narrative centres around lies and truth and that the children purport to believe the husband’s version of what has occurred as the truth, however her opinion is that the children know they have been lying. Dr NZ’s evidence was that the children are currently unhappy due to the husband’s behaviour and the investigation by DHS which has resulted in the children having to attempt to prove allegations which were false.
In cross examination the husband asked Dr NZ if she had touched, pushed or shoved the children in her consulting rooms to cause M to fall to the ground. The husband stated that the children had reported to him this morning that they had been “assaulted” by Dr NZ. Dr NZ denied touching the children, assaulting them or either of them. I accept Dr NZ’s evidence in that regard.
Ms Smallwood did not cross-examine Dr NZ.
The only other evidence upon which the husband relies was the evidence of a police officer from Victoria Police who was one of two attending officers who were called to the Court after the husband and children were observed to be in the Court. I heard from First Constable TS from Victoria Police. He gave evidence about what had occurred today, including that he had verified an intervention order was in force against the husband which precluded him from approaching or remaining within five metres of protected persons, and that the children were each protected persons. He confirmed that the order is current.
The First Constable read from a statement that he had taken from M which confirmed that she had gone to her grandparents’ home this morning and that from there called her father; that her father had taken them to a lawyer and from the lawyer’s office in Suburb HC to this Court building.
The First Constable recorded that M had said that she is not happy at her mother’s home, and that she had taken an opportunity to run away today. Her precise words were that she could not stand living at home with the wife, “I can’t be there.” M complained that the wife said bad things about the husband in her presence and in the presence of others, that she hasn’t seen her father for two months and that on the weekends they were locked in the house and had no keys to get out of the house.
I accept the First Constable’s evidence as an accurate account.
Can I at this point express the Court’s gratitude for Victoria Police attending so punctually today and for remaining in court whilst these proceedings have been run.
I will deal first with the husband’s oral application for an immediate change of residence arrangements.
As with any decision in relation to children, the paramount consideration is their best interests (s 60CC(1)). There is a pathway for making children’s decisions, and it includes taking into account primary considerations (s 60CC(2)) and additional considerations (s 60CC(3)). This is an interim hearing, but I am still required to have regard to the pathway, and I do so. There is no order for equal shared parental responsibility either in existence or applied for by the husband. I conclude that it is neither in the children’s best interests nor appropriate to consider imposing equal shared parental responsibility on the children in this interim proceeding (s 61DA).
I take into account the need to protect the children from physical and emotional harm or abuse. I give due consideration to the benefit to the children of having a meaningful relationship with both parents. The additional considerations illuminate the primary considerations but not all considerations are relevant to this interim determination.
This is a matter where I must be very cautious about views expressed by the children. Like Dr NZ, I acknowledge that the children say they do not want to live with the wife. However, I also accept Dr NZ’s evidence that there has been a corruption by the husband of the children’s relationship with the wife. I accept that the children articulate views very much opposed to the wife and very much in favour of the husband. I accept, however, that from time to time both children exhibit behaviour which indicates they are favourably disposed to the wife to an extent that what the children say may not be what they think or feel. Specifically, I do not consider that the children’s views which are oppositional to the wife are soundly based or can be accorded much weight.

In relation to psychological harm and the capacity of the parents to protect the children from such harm, I accept the evidence of Dr NZ that the children are disturbed now and are each at risk of compromised mental health in years to come and that the source of the disturbance is, in very simple terms, the husband. I say, in simple terms, because it is a complex case involving complex relationship dynamics and no one person is the sole source of the difficulties with which the children must contend. That said, the expert evidence of Dr NZ satisfies me that the preponderance of the children’s problems are attributable to the husband and his influence. At this point, I am satisfied that the children being in the care of the husband is not only contrary to their best interests but also contrary to their psychological health and any improvements thereto save where such time is countenanced by a mental health professional such as Dr NZ.
I also accept Dr NZ’s evidence that D is at risk of being dominated by M. For the purpose of this interim determination, I am not at all confident that the husband has the ability or the will to protect D from that unhealthy dynamic.
I conclude that the wife is trying as hard as she can to care for the children and whatever her capacity is to care for the children’s emotional and intellectual needs, it is far in excess of the husband’s abilities and motivations to do so.
Whether I make an order least likely to lead to the institution of further proceedings is not relevant on an interim basis. The impact of further proceedings on the interests of the children is a matter that I am considering in the context of my decision next week.
I consider the effect of changing the residence arrangements now. I conclude that it would be contrary to the children’s best interests to do so. Dr NZ’s evidence is that the children will benefit most from reinforcement of their wife’s position as their primary carer and a figure of authority.
I take into consideration the family violence orders currently in force including the interim orders obtained by the husband and the paternal grandfather against the wife on an ex parte basis. In practical terms, these orders operate temporarily. I will require the husband, by his father, to deliver the children’s school bags to them tomorrow by depositing them at the office of the Principal of each school.
On this interim basis, I take into account the nature of the relationship of each child with each of the parents. I accept Dr NZ’s opinion that the children are very close to the husband but not in a healthy way. Her evidence is that M and D are inappropriately aligned with the husband and that their relationship is one of enmeshment rather than nurturing.
Dr NZ’s opinion, which I accept, is that much work needs to be done on the children’s relationship with the wife but that the wife is the most capable and safest parent.
I consider the children’s relationship with one another. Dr NZ’s opinion, which I accept, is that M dominates D to an extent that D’s emotional well being is compromised.
The interim order sought for a change of residence is the same as the application that the husband already has before the Court filed in December 2012. Save that in that earlier application, the husband seeks orders that the wife have unsupervised alternate weekend time with the children and half the school holidays. Now he seeks that the wife’s time with the children be supervised. What is very similar, though, is the basis for the application. With the exception of the email from Dr NZ, what the husband relies upon now as evidence or complaints to justify his application is much the same as what he has said in the primary application. A new development is the email from Dr NZ. In my view, having had the benefit of hearing Dr NZ’s evidence and her contextualisation of the letter or email which she sent to the wife, I do not have concerns about the children’s safety in the care of the wife at this time.
Also, whilst the proceedings have been pending in this Court for some time and my decision is outstanding, one of the things that has occurred has been a fairly extensive examination or assessment of the matter by the Department of Human Services. Less than two months ago in this Court, a case worker from the Department gave evidence before me. The evidence of Ms LS was transcribed. I accepted that evidence as accurate. The purpose of the Department giving evidence was that the husband had earlier come to court and said that they were conducting an investigation and would prepare a report.
The evidence that I received from Ms LS on 21 May 2014 satisfied me that there were no protective concerns about the children in the wife’s care, but there would be protective concerns in the care of the husband. The Department of Human Services had specifically investigated a number of allegations by the children against the wife, including being locked in the house, being abused by her and other allegations such as not being fed. The Department found all of those allegations to be without foundation and did so in the context of its statutory duties in relation to children who are alleged to be at risk.
It was the view of the Department that M was manufacturing evidence against the wife for these proceedings or attempting to do so.
Insofar as the husband alleges that the children are locked in the wife’s home and deprived of their freedom, I observe that this allegation does not sit comfortably with the children walking to school each day unaccompanied by the wife (as they did this morning).
I am not satisfied that it is in the best interests of the children to accede to the husband’s oral application. I am not at all satisfied that there is any basis to change the current care arrangements for the children, and I will not do so. I dismiss the husband’s application for an urgent change in residence.
I turn now to the application of Ms Smallwood, for the wife, for a power of arrest to attach to the injunction.
The power of the Court to make injunctive relief is set out in Division 9 of Part VII, and the Court is able to make such order as it considers is appropriate for the welfare of the child. Section 68C sets out the power of arrest that can attach to an injunction. The existing injunction is as I have already described it. The effect of a power of arrest attaching to the injunction is that if a police officer believes on reasonable grounds that Mr Prantage has breached the injunction in relation to having the children in his care or contacting or communicating with them in any way, the husband can be taken into custody without the need for any warrant.
The orders made in March 2012 clearly contemplated the very situation that occurred this morning. The current order could not be clearer inasmuch as it provided that, upon the children contacting the husband, he was required to “do all things required to ensure the children are returned immediately to the home of the wife”. He did not do so. On his own evidence, he took the children first to a solicitor in Suburb HC, had one of the children talk to the solicitor and then brought the children to the Court. He recognised, however, that the children could have been returned immediately to the wife, a circumstance that he described to me today as “I could have ignored the children” or words to that effect.
The husband does not in any way appear to have attempted to contact the wife or to return the children to the wife’s care. It is fortuitous that the solicitor for the wife or someone from his office recognised the husband and the children at court. In these circumstances, it seems to me that it is appropriate for the welfare of each of the children to augment the force of the injunction made on 2 March 2012 by attaching to it a power of arrest. I will do so.
I note that the Order that was engrossed referred incorrectly to the injunction being “under section 68C”. It also omitted a necessary reference to the injunction being “for the personal protection of a child”. I have corrected the Order and direct that an amended version now issue.
I have received into evidence, as an exhibit, photocopies of intervention orders which the husband has obtained on an ex parte basis and, I understand, the paternal grandfather might have obtained on an ex parte basis against the wife. They are interim orders. The wife has not been heard in relation to those matters, and I understand that the proceedings are not returnable in the relevant Magistrates Court until mid‑August, 2014.
The next matter is that Dr NZ gave evidence about a bundle or numerous complaints by the husband against her to the psychological board or the professional standards board. Those will be sent to the subpoenaed documents clerk. The husband opposed them being sent to the subpoenaed documents clerk. He said that these matters were separate from any Family Court proceedings and were between him and Dr NZ and the appropriate authorities. However, he says that the facts in the complaints are true and correct.

RECORDED : NOT TRANSCRIBED

The wife, through her counsel, seeks an entitlement to inspect the complaints made by the husband against Dr NZ. That is appropriate. Both parties are on notice that in the event that they want to make any submissions in relation to those complaints or the content of those complaints, they should make those submissions in writing prior to next Wednesday when the reasons for decision are due to be handed down. It is not appropriate that I look at the documents unless submissions are made, and I do not propose to do so.

ORDERS DELIVERED

The wife makes an application for costs, and the husband opposes same. I have discussed with the parties that the general provision is that each party bear their own costs, save where there are circumstances in which I consider it is justified that there be a costs order.
Counsel for the wife points out that the costs in these proceedings have been enormous to the wife and that today will set the wife back another $6,400 based on what she will be charged. The husband opposes any costs orders. I have directed him to s 117(2A), with which he said he was already familiar.
I am satisfied that neither party can afford legal costs and that it is an impost on both of them. However, lack of ability to pay is not a defence to an application for costs where there are circumstances which otherwise justify a costs order being made.
I take into account that these proceedings were necessitated by the failure of the husband to comply with the injunctions that I have earlier referred to and I also take into account that he has been wholly unsuccessful in these proceedings in terms of his oral application.
I am comfortably satisfied that an order for costs in this case is justified.
On an indemnity basis, the wife seeks the sum of $6,400 based on a brief fee for Ms Smallwood at $4,400 and $2,000 for the solicitor, and I can see for myself that two solicitors have been in court, which is symptomatic of the urgent manner in which the matter was brought on.

RECORDED : NOT TRANSCRIBED

The law in relation to indemnity costs is such that I would have to be satisfied that these proceedings were of a particular nature before it would be proper that I make such an order. The circumstances attracting indemnity costs orders were traversed by the Full Court in its determination of the husband’s successful appeal against Cronin J’s Order on 10 August 2012 to award indemnity costs. I adopt the discussion of the Full Court at Prantage & Prantage (2013) 49 Fam LR 197 for my determination of this case in relation to the nature of proceedings and conduct to which indemnity costs orders attach (at paragraphs 76–85).
I am not satisfied that it is appropriate to make an order for indemnity costs.
However, it is appropriate to make an order for costs. I do so in accordance with the scale provided in the Family Law Rules. I allow costs at the top end of each individual range and for the attendance of two solicitors for the wife. Therefore, counsel’s fees will, on what I have been told, be allowed in the sum of $2,700, and solicitors’ fees – I will allow for the attendance of two solicitors, having regard to the fairly urgent and extraordinary manner in which the matter was brought on, for 4.5 hours each.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 July 2014.

Associate:

Date: