Preiss and Preiss (No. 3)

Case [2018] FamCA 945


FAMILY COURT OF AUSTRALIA

PREISS & PREISS (NO. 3) [2018] FamCA 945

FAMILY LAW – CHILDREN – where final orders had seen the parties’ child live with the wife nine days and the husband five days – where the wife had an incident with the child resulting in her own hospitalisation, the removal of the child and the Police laying charges against her – interim application for a resumption of time and orders made for supervision.

FAMILY LAW – PROPERY – s 79A – where the husband now seeks to set aside or vary the property orders but fails to provide evidence or submissions as ordered – where the wife seeks summary dismissal – where, absent material, the husband’s application has no reasonable likelihood of success.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
British American Tobacco Australia Ltd v The State of Western Australia[2003] HCA 47; (2003) 217 CLR 30 [103]
Dey v Victorian Railways Commissioners[1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125, 129
Goode & Goode [2006] FamCA 1346
Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; 70 ALJR 541
Masters & Cheyne [2016] FamCAFC 255
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Preiss & Preiss [2017] FamCA 720
Preiss & Preiss (No. 2) [2018] FamCA 805
Simpson & Hamlin [1984] FamCA 62; (1984) FLC 91-576
Spencer v The Commonwealth[2010] HCA 28; (2010) 241 CLR 118 
Webster v Lampard[1993] HCA 57; (1993) 177 CLR 598
APPLICANT: Mr Preiss
RESPONDENT: Ms Preiss
FILE NUMBER: MLC 10148 of 2014
DATE DELIVERED: 20 November 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: 1 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Goddard
SOLICITOR FOR THE APPLICANT: Go to Court Law
COUNSEL FOR THE RESPONDENT: Mr Salamanca
SOLICITOR FOR THE RESPONDENT: Gadens Lawyers

Orders

  1. THAT UNTIL FURTHER ORDER, the time and communication between B (born … 2009) (“the child”) and his mother Ms Preiss be as follows:

    (a)       Each Wednesday by telephone with the mother initiating the communication to the father’s mobile telephone; and

    (b)       At such times and on such occasions under supervision as the contact service at which both parties have registered can accommodate.

  2. For the purposes of paragraph 1 (b), the contact service is not to commence and supervision time until after the first consultation by psychologist Dr N and unless she objects (and the parties thereafter act upon her views according to the terms of paragraph 4) the time shall proceed.

  3. Also for the purposes of paragraph 1 (b) and the avoidance of doubt, the contact service is to be advised by the solicitors for the husband and the wife that:

    (a)       The wife has pending criminal charges against her for assault against the child at a time when she was said to have suffered a mental…

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Details
AGLC
Preiss and Preiss (No. 3) [2018] FamCA 945
Case
[2018] FamCA 945
Decision Date

CaseChat Overview and Summary

In the matter of *Preiss and Preiss (No. 3)*, Cronin J considered applications concerning both parenting and property matters. The parenting dispute arose following an incident where the wife was hospitalised after an event involving the child, leading to the child's removal and criminal charges being laid against the wife. Interim orders had previously established a shared parenting arrangement where the child lived with the wife for nine days and the husband for five days. The property dispute involved the husband's application to set aside or vary existing property orders, which the wife sought to have summarily dismissed.

The court was required to determine the appropriate interim parenting arrangements for the child, particularly in light of the wife's hospitalisation, the pending criminal charges, and concerns about the child's fear of face-to-face contact with his mother. Additionally, the court had to consider the husband's application to vary property orders, assessing whether it had a reasonable prospect of success given the lack of evidence and submissions provided by the husband.

Cronin J made interim orders restricting the child's direct contact with the mother to supervised arrangements and weekly telephone calls, with the commencement of supervised contact contingent on a psychologist's consultation and approval. The court directed the preparation of an expert psychological report to address the child's fears, the potential psychological harm from pursuing the relationship, the impact of the mother's absence, and steps towards a future relationship. The court also summarily dismissed certain paragraphs of the husband's initiating application concerning property, finding that, absent material, his application had no reasonable likelihood of success. The remaining parenting applications were adjourned for a final hearing.

Orders

Orders of the court

1.

THAT UNTIL FURTHER ORDER, the time and communication between B (born … 2009) (“the child”) and his mother Ms Preiss be as follows:

(a) Each Wednesday by telephone with the mother initiating the communication to the father’s mobile telephone; and

(b) At such times and on such occasions under supervision as the contact service at which both parties have registered can accommodate.

2.

For the purposes of paragraph 1 (b), the contact service is not to commence and supervision time until after the first consultation by psychologist Dr N and unless she objects (and the parties thereafter act upon her views according to the terms of paragraph 4) the time shall proceed.

3.

Also for the purposes of paragraph 1 (b) and the avoidance of doubt, the contact service is to be advised by the solicitors for the husband and the wife that:

(a) The wife has pending criminal charges against her for assault against the child at a time when she was said to have suffered a mental health issue resulting in her being hospitalised for some months;

(b) the child is said to be fearful of face-to-face contact with his mother although the source of that report is unknown;

(c) the child has been having telephone communication with his mother since early in 2018; and

(d) The Court has ordered the preparation of an expert psychological report relating to the impact of any orders upon the child but has not had the benefit yet of that report.

4.

That all parties have liberty to apply on short notice to seek to delay and/or suspend paragraph 1 (b) on appropriate evidence.

5.

That all extant applications for final parenting orders are otherwise adjourned to a date to be fixed for final hearing before a judge.

6.

That the parties, at their joint and equal expense, attend upon, AND AT THE DIRECTION OF, psychologist Dr N for the purposes of the preparation of a report to them and to the Independent Children’s Lawyer appointed by the Court in relation to:

(a) The matters raised in the reasons for judgment published with these orders;

(b) The issue of whether or not the child has a fear of face to face contact with his mother and if so, whether the pursuit of that relationship creates an unacceptable risk to him of psychological harm;

(c) The impact on the child of the absence of his mother from his life; and

(d) What needs to be undertaken to ensure that there is some form of future relationship between the mother and the child.

7.

The solicitors for the parties shall provide to Dr N a copy of the reasons for judgment this day.

8.

That pursuant to s. 65DA(2) and s. 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 these particulars are included in this order.

9.

That paragraphs 2, 4, 5, 7, 9, 12, 13, 15, 16, 17 and 18 of the Initiating Application filed on 1 September 2018 are summarily dismissed.

10.

That paragraphs 6, 8 and 14 of the said Initiating Application are consolidated with paragraph (5) of these Orders.

11.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 4:00 pm on 30 November 2018 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 4:00 pm on 7 December 2018 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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