PRIOR & PRIOR

[2020] FamCA 483

FAMILY COURT OF AUSTRALIA

PRIOR & PRIOR [2020] FamCA 483

FAMILY LAW – PROPERTY – adjournment of enforcement issue about superannuation split to be implemented in the United Kingdom.

FAMILY LAW – PARENTING – where father brought contravention application partially in objectionable form – where contravention application is withdrawn and parties address underlying parenting issue through oral applications.

FAMILY LAW – PARENTING – where father resides in USA and child in Australia – where father is estranged from the eldest child, a daughter – where COVID-19 restrictions prevent international travel and consequently extensive face to face time between father and teenage son – where high degree of entrenched parental conflict – where father complains of son not being able to enjoy electronic communication with him because of lack of support from mother and potential isolation of the son within the mother’s household in Australia.

FAMILY LAW – PARENTING – where restrictions associated with COVID-19 may put child’s emotional health at risk – where parent and children’s issues assessment to be undertaken as soon as possible – where independent children’s lawyer is requested to be re-appointed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Prior

RESPONDENT: Mr Prior

FILE NUMBER: MLC 8811 of 2015

DATE DELIVERED: 29 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The issue of implementation of the final property order in relation to the pension fund division be adjourned to a date to be fixed and may be relisted before me on application of either party with notice to the other and a precise minute of orders sought and for that purpose either party may contact the Case Co-ordinator – email ... – to seek that the matter be relisted.

2. This parenting matter be adjourned for interim defended hearing on Wednesday 17 June 2020 at 10.00 am (‘”the adjourned date”) and the hearing be conducted by electronic means if the COVID-19 restrictions are still in place.

3. There be leave to the father to withdraw his Contravention Application filed on 27 April 2020 NOTING THAT the application has not been determined on the merits and the father is at liberty to use both the form of the application and any evidence in support thereof in the parenting proceedings.

4. I grant leave to the father to make oral application in relation to the child X born … 2008 (“the child” “X”) for orders:

   (a)       to use WhatsApp as a further means of electronic communication;

   (b)       to vary the extant parenting orders made on 31 October 2018 to expand communication and face to face contact between X and the father whilst restrictions on international travel are in place and frustrate exercise of face to face time, as ordered;

   (c)       compensating the father and X for time lost once the travel restrictions are lifted.

5. Paragraph 13 and 14 of the Order made on 31 October 20018 be varied by including as a means of electronic communication the WhatsApp application. To facilitate the use of the application the father guide X through the installation of the WhatsApp application on his iPhone.

6. The use of WhatsApp is to apply in a reciprocal manner to the communication to which X is entitled with the mother when he is in the care of the father.

7. The mother and the father:

   (a)       Do all things necessary to ensure that X is able to communicate with the husband at specified times from the privacy of his bedroom if X is at home or a similarly private area if X is not at home;

   (b)       Not cause permit or suffer the child X to take photographs of any part of the home other than his bedroom.

8. Whilst the COVID-19 precautions in Melbourne are in place and/or X’s usual routine of school and recreational activities is disrupted, the child X have further audio-visual communication with the father on Mondays, Wednesdays and Thursdays from 8.00 pm to 8.40pm (Melbourne time) subject to all existing conditions pertaining to privacy, provision of a suitable phone or device and ensuring the device is sufficiently charged and the device being within range.

9. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2008 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation NOTING THAT the child X and his sister Y born … 2003 were previously represented by Ms B of Victoria Legal Aid. The independent children’s lawyer be appointed in sufficient time to arrange with the family consultant to meet with X electronically not earlier than the s11F assessment interviews and then be able to make recommendations about what parenting orders would be in the best interest of X by the next return date.

10. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

11. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

12. The mother file and serve any affidavit material upon which she proposes to rely upon on the adjourned date by not later than 12.00 noon on Monday 13 May 2020 NOTING THAT the father relies on his affidavit sworn by him on 26 April 2020.

13. I relieve the parties from compliance with Rule 15.08(2)(b) of the Family Law Rules so that all annexures identified in an affidavit are to be attached to the affidavit and accepted for filing. If the annexures cannot be attached the party or the practitioners filing the affidavit send to the annexures to my chambers electronically– email ...

14. Pursuant to section 11F of the Family Law Act 1975 the parents attend an appointment/series of appointments with a family consultant of this Registry of the Court electronically by Microsoft Teams and for that purpose:-

    (a) The s 11F assessment relates only to the child X;

    (b)       The parents be interviewed on 15 May 2020;

    (c)       The child X to be interviewed on 28 May 2020;

    (d)       IT IS REQUESTED that the family consultant facilitate a meeting between X and the independent children’s lawyer during the assessment;

    (e)       The mother is to ensure that X can communicate with the family consultant privately and alone;

    (f)        The sequence and organisation of interviews is a matter within the sole discretion of the family consultant and may, at the discretion of the family consultant include assessments of X with either or both of his parents;

    (g)       The family consultant may appoint further interviews for the parties and the child;

    (h)       IT IS REQUESTED that the family consultant prepare a Children and Parents Issues Assessment in writing and publish that Assessment by 5 June 2020.

15. The parents are each restrained from causing permitting or suffering any part of the s11F assessment to be recorded and any recording produced in breach of this Order will be inadmissible as evidence in this proceeding.

16. IT IS REQUESTED that the family consultant be available for cross-examination on the adjourned date.

17. For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

18. By not later than 9 June 2020 each parent file and serve a memorandum of the orders which he or she seeks be made by way of parenting arrangements.

19. By not later than 14 June 2020 at 10:00 a.m. the independent children’s lawyer file and serve a memorandum of the parenting orders which in her preliminary view ought to be made on the adjourned date.

20. Upon compliance with the two preceding paragraphs of this Order, I relieve the parties from compliance with the requirement under the Family Law Rules 2004 to file and serve formal applications, responses and replies.

21. I DIRECT that my Associate send to the parties the guidance for witnesses to give evidence by electronic means.

22. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue.

23. The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.

24. All parties ensure that they are suitably equipped to participate on the adjourned date with an electronic device for visual as well as audio transmission.

25. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

26. That pursuant to Sections 65DA(2) and 62B the particulars and 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.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8811 of 2015

Ms Prior

Applicant

And

Mr Prior

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an adjourned return date in relation to outstanding financial matters and the implementation of orders made by the Court in 2018.  A component of that final alteration of property interests was the distribution of the division of some superannuation or pension-like entitlements involving institutions in the United Kingdom, and there has been difficulty with the implementation of that. 

2. Today, the parties have sensibly agreed to adjourn that matter to a date to be fixed, and it can be refixed on the application of either by correspondence to my associate requesting that the matter be listed.  The other party must have notification of that request for a relisting, and the request must be accompanied by a minute of precise orders which address whatever discernible difficulty there is in perfecting the implementation of the final financial orders.

3. Another matter arises by virtue of the father having filed a contravention application on 27 April 2020.  It is a document which has been completed by him.  Some of it is in objectionable form.  It is not in a form in which it could be readily prosecuted in this Court.  However, in discussion with the parties, it has been agreed that the contravention application will be withdrawn, and, indeed, Mr Prior has done that.  The contravention proceedings are at an end.  There has not been a determination of that application on the merits, and Mr Prior is at liberty to rely on the evidence in support of them in a parenting application.  The evidence he has in support of his application is his affidavit, sworn on 25 April 2020.

4. The family is now able to go down the path wherein orders are made with the paramount consideration being the best interests of the children.  In this case, there are two children:  X, who is 12, and Y, who is 16.  The father does not have a significant relationship with Y in terms of communication or visitation.  I think it is fair to say that there is a degree of estrangement.  The father does have ongoing contact and face-to-face time to X.  However, the mother lives in Suburb C with the children, and the father is currently living on the east coast of the United States, in H City. 

5. The operative orders, being those made on 31 October 2018, envisage that the husband and X would be having a two-week period together in the United States.  Clearly, that cannot happen because of the COVID-19 lockdown restrictions.  The father has filed material and makes application for extra time with X based on what he says has been a disruption in his ability to have meaningful communications with X or, alternatively, that the communications which are provided for in the current orders and which can, in fact, take place are insufficient to meet X’s needs to maintain a meaningful relationship with the father.

6. I have informed the parties that an 11F assessment, under s 11F of the Family Law Act 1975 (Cth), is available for them, commencing on 15 May with interviews being conducted audio-visually via Microsoft Teams, with an assessment being published by 5 June. The mother has reservations. She is juggling the care of two children at home in lockdown conditions, the tension of which I do not underestimate. The mother is employed by D Organisation. Y goes to G School, and X is at F School. So there are three school timetables to juggle, notwithstanding that at the moment, the children are not going to school.

7. The mother says it would be better to wait until after COVID-19 restrictions are lifted before looking again at parenting arrangements for X because she and, inferentially, he has enough on his plate at the moment.  The mother’s position was that the electronic communication is going smoothly and there are a number of reasons why there shouldn’t be an assessment any a family consultant at this point in time.  She submitted that the matter would be best looked at later.

8. The parents will be assessed on 15 May 2020 and X will be assessed on 28 May 2020.

9. I hear what the mother says.  I note her concerns.  But it is, in fact, the incidence of the lockdown restrictions and the alteration in X’s daily routine and the fact that he cannot see his father for the two-week holiday that was envisaged that, in my view, makes an assessment not only attractive but a necessity at this stage.  It may be nothing more than checking in to see that X is coping well.  The time between now and 15 May and then 15 May and 28 May will provide a good demonstration of how the mother and the father are able to support X’s communication with the father.

10. The parties have agreed on further orders to support electronic communication between X and the father. The s 11F assessment is an opportunity to have the Family Consultant advise if the electronic communication currently in force is beneficial and adequate, whether there should be an increase having regard to the fact that there is no certainty about when face to face time can resume. There is also the issue of what face to face time should be had once COVID-19 restrictions are eased to a point where international travel recommences and is safe. X and the father may benefit from making up some lost time, not as compensation but to restore balance.

11. It is to be remembered that electronic communication is for the benefit of the child not the parents.  A parent cannot undermine electronic communication so that it is not enjoyable for the child and then seek to dispense with it on the basis that it is not enjoyable for the child.

12. I expect that the Family Consultant will report in a nuanced and subtle way.  X may be in a difficult position.  He could be understandably hesitant about saying anything to the Family Consultant which is critical of his mother and/or sister because he is embedded in that household without means of relief.  He could be understandably hesitant to disappoint the father because they have limited interaction.  I have read the early social science reports in this matter on which the 2018 Order was based.  The reports describe a family of high parental conflict where the interests of children are subjugated to the interests of adults.  It is conceivable that, in some circumstances, X’s instincts for self-protection could lead him to repudiate his relationship with the father, at least until he can have face to face time with him, in order to secure harmony or not be ostracised in the mother’s home.  Then again, none of these considerations may apply.

13. I have requested the re-appointment of an Independent Children’s Lawyer. The last Independent Children’s Lawyer was Ms B. It would be appropriate for Ms B or her replacement to meet X at some convenient time during the s 11F assessment if that is possible.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 April 2020.

Associate:

Date:  16 June 2020