PUCKLE & PERKINS

[2018] FamCA 600

FAMILY COURT OF AUSTRALIA

PUCKLE & PERKINS [2018] FamCA 600

FAMILY LAW – CHILDREN – Best interests – with whom the children live – where the parties have reached consent on a final basis – where the parties shall have equal shared parental responsibility for the children – where the younger child will live with the respondent father – where the older child will live with the applicant mother – where the children will spend time with each other each weekend alternating in each parent’s care.

FAMILY LAW – CHILDREN – where it has been asserted that the applicant mother has links with extremists – where it is found that there is no evidence or anything definitive to suggest what “extremist behaviours” refers to and whether the behaviour has anything to do with the indoctrination of the children.

FAMILY LAW – COSTS – oral application by the Independent Children’s Lawyer – where the respondent father is ordered to pay $2,000.00 to Legal Aid New South Wales by no later than 18 January 2019.

Family Law Act 1975 (Cth)

APPLICANT: Ms Puckle

RESPONDENT: Mr Perkins

INDEPENDENT CHILDREN’S LAWYER: Solari & Stock Lawyers

FILE NUMBER: PAC 900 of 2013

DATE DELIVERED: 18 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hogan J

HEARING DATE: 16, 17 & 18 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: Ca Williams Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rebehy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Solari & Stock Lawyers

Orders

IT IS ORDERED THAT

1. All previous orders are discharged.

AND IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. In the terms of the Minute of Order Annexure “A”.

AND IT IS FURTHER ORDERED THAT

1. The original Minute of Order signed by the parties be placed and kept on the Court file.

2. The Respondent pay an amount of $2,000.00 to Legal Aid NSW by way of costs, with such sum to be paid by no later than 18 January 2019.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

ANNEXURE “A”

MINUTE OF ORDER

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The mother and the father shall have equal shared parental responsibility for the children, X (born … 2011) and Y (born … 2012).

2. For the purposes of Order 1 the parties shall ensure:

   (a)the children’s names shall be known as and recorded as X and Y;  and

   (b)on all records which are kept or required to be completed (including all records concerning their health and education) where there is a requirement for a “religion” to be recorded, that part of the record will be left blank so that the children are not identified as having any religious affiliation.

3. The child, X (born … 2011) live with the mother.

4. The child, Y (born … 2012) live with the father.

5. The child, X (born … 2011) spend time with the father as follows:

   (a)during school terms each alternate weekend from after school Friday until before school Monday (with the father to be responsible for the collection and delivery of X either in person or his nominee), commencing 27 July 2018.

6. The children spend time with the father:

   (a)       during school holidays:

   (i)in Term 1, 2 and 3 for one (1) week (seven (7) days duration) commencing from after school on the last day of the school term and to be concluded after seven (7) days at 3.00 pm with a changeover to be arranged to occur at B Contact Centre;  and

   (ii)in Term 4 for three (3) weeks in total being:

   (A)from after school on the last day of the school term for a period of seven (7) days;  and

   (B)thence the father shall ensure the children spend the next seven (7) days with the mother;  and

   (C)thence the next seven (7) days the children shall spend with the father;  and

   (D)thence the father shall ensure the children spend the next seven (7) days with the mother;  and

   (E)       then the next seven (7) days with the father;  and

   (F)thence the father shall ensure the children spend time with the mother until school recommences.

7. The child, Y (born … 2012) spend time with the mother as follows:

   (a)during school terms each other alternate weekend (so as to ensure the children spend each weekend together) from after school Friday until before school Monday (with the mother to be responsible for the collection and delivery of Y either in person or her nominee) commencing 20 July 2018; and

   (b)NOTED:  the mother has indicated there may be times when Y is up to 30 minutes late in getting to school due to her commitment in getting X to school.  The father does not raise this as an issue and both parties will ensure that this is not raised as an issue with his school.

8. The children shall spend time with the mother during school holidays when they are not spending time with the father pursuant to Order 6.

9. Time pursuant to Orders 5a and 7a are suspended during school holiday periods.

10. The children shall spend time with the mother on the following religious festivals, providing the mother gives the father seven (7) days’ notice in writing:

    (a)from 9.00 am on religious holy day 1 until 5.00 pm three (3) days later; and

    (b)       from 9.00 am on religious holy day 2 until 5.00 pm three (3) days later;  and

    (c)       from 9.00 am on religious holy day 3 until 5.00 pm the next day;  and

    (d)       from 9.00 am on religious holy day 4 until 5.00 pm the next day.

11. The children spend time with the father each year as follows:

    (a)       from 3.00 pm on Christmas Eve to 5.00 pm Boxing Day;  and

    (b)       from 3.00 pm Easter Friday to 3.00 pm Easter Sunday;  and

    (c)on Father’s Day weekend from Friday after school to Monday morning at school.

12. The children shall spend the Mother’s Day weekend with the mother from after school Friday to Monday morning.

13. Neither party shall physically discipline, nor allow any other person to physically discipline the children.

14. The parents shall not denigrate the other party or any member of the other parent’s family or household in the presence or hearing of the children and shall ensure that no third party denigrates the other parent or any member of the other parent’s family or household in the presence or hearing of the children.

15. With respect to any school(s) that the children attend that:

    (a)both parties are authorised to liaise with any school that the children attend and obtain any information ordinarily made available to parents, including photos and important events, that allow for parental attendance;  and

    (b)each party will be listed as an emergency contact at any school that the children attend.

16. The parties will keep each other informed of their contact details and address and inform the other of any change as soon as practicable or within twenty-four (24) hours of such change.

17. The parties communicate about parenting issues by way of e-mail and shall communicate in a polite manner and give a reply in a timely manner.

18. In the event of any of the children suffering a medical emergency requiring medical attention while spending time with or living with either party:

    (a)       the other party be notified as soon as practicable by text message; and

    (b)the medical practitioner or facility is to be informed that the other parent has access to the child’s medical records and the information obtained within them upon request.

19. If time occurs when the children are not picked up or dropped back at school then pick up and drop off of the children shall continue to occur at B Contact Centre.  When the Contact Centre is not available the parents will ensure that Mr C Perkins will facilitate a changeover (or such other person who may be agreed).

20. The mother is restrained from changing the name of X or Y, and is restrained from calling X “Z” or permitting anyone else to do so, or allowing any other person to record X’s name or “preferred name” as Z.

21. The child, X (born … 2011) will attend upon a paediatrician once each year and the mother will arrange the appointment and advise the father of the appointment and the father will be at liberty to make arrangements for his own appointment/report from the same paediatrician at his own expense.

22. The mother will ensure the child X (born … 2011) remains enrolled at E School for the duration of his primary schooling unless otherwise agreed in writing between the parties.

23. The parties keep each other informed by e-mail of all treating medical or therapeutic practitioners in relation to the children in a timely manner.

24. The parties, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X, a male, born … 2011 and Y, a male, born … 2012 either in the company of an adult or as an unaccompanied minor from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.

NOTATION:

(A)It is noted that the Court Expert Dr D has identified that both parents would benefit from support and information to improve their parenting capacity and skills, and recommends that both engage in the program, Circle of Security.

(B)Dr D also recommends that the mother requires structured social support from engagement with the F Group program or similar and following up any recommendations they may make.

(C)It is noted that the parties are agreed that the time the children shall spend with each of them for Mother’s Day and Father’s Day shall be in addition to regular weekend time.

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 Puckle & Perkins 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 PARRAMATTA

FILE NUMBER: PAC 900 of 2013

Ms Puckle

Applicant

And

Mr Perkins

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. On balance, I am persuaded, even in the circumstances of the case and despite the concerns I have initially expressed that, for the reasons that have been expressed during the discourse with Counsel, it is in the children’s best interests that there be an order for their parents to have equal shared parental responsibility for them.  In arriving at that decision, I note the force of the submissions made, in particular, by Counsel for the father in support of the making of such an order – joined, of course, by the submissions made on behalf of the other parties.

2. I note also that the parents have reached agreement about X’s continued attendance at E School:  something that appears to me, for the reasons I have expressed, to be particularly important so as to ensure that he is afforded access to those services which will best support him, and so that he can continue to make improvements and to function, as he grows, to the best of his ability. 

3. These agreements, albeit that they effect a continuation of the separation of siblings, is something which, in the circumstances of this case, appropriately reflects and attempts to meet the needs of each of the children considered individually and together.

4. For those reasons, then, I am persuaded that the orders, proposed by the parents and in which they join, are orders which are in the children’s best interests. I make them.  I initial the orders and place them with the papers.

5. Any concerns that may have existed in relation to either parent being able to remove either child from the Commonwealth of Australia are, of course, met by the agreed order, which prohibits the parents (or their agents or servants) from removing either child from the Commonwealth of Australia and in order to ensure that that is the case, which causes the children’s names to be placed on a watch-list until further order of the Court.  In the circumstances, that is an appropriate order. 

Assertion about the mother’s asserted links with extremists

1. I wish to deliver some very short reasons to deal with one issue that has arisen during the course of the hearing.  This is the issue that touches upon the assertion about the mother’s asserted links with extremists. 

2. Reference to the Departmental documents provided to me (which shall be Exhibit 7) seems to me to establish a number of things. 

3. One is that, chronologically speaking, it appears that the father’s evidence about his concerns about the mother’s potential links with what he has described as “extremist groups” seems to have been based on a number of things.  One of these – I think the first in time – is that about which he gave evidence (at paragraph 84 of his affidavit) to the effect that, in mid-2015, the mother made some comments in a Facebook post.  The document is Exhibit D to the father’s affidavit.  I do not intend to read it into the record.  To place those comments in context, the mother’s evidence, though, is to the effect that she had been the subject of verbal abuse whilst travelling on public transport and had made those comments not long after that event.

4. I also note, by way of summary, that what appears next chronologically, appears to be that about which the father gives evidence (at paragraph 24 of his affidavit): namely, an event which occurred on 13 February 2016.  His evidence is to the effect there was telephone communication between himself and an unknown person (a male) who did not identify himself.  His evidence was to the effect that the communication was aggressive and involved that person making derogatory comments toward him. These included making a comment to the effect of him being a “…dog” and “a junkie”.  This occurred not long before the day on which Y came into his father’s care; on the evidence, the parties then executed (on 21 February 2016) a parenting plan. 

5. The evidence established that, between 21 February 2016 and December 2016, there was no interaction between each parent and the child who was not in that parent’s care. 

6. Taking matters chronologically, it next appears that, in July of 2016, the mother sought an order, by way of Application filed in the Federal Circuit Court, to permit her to change X’s name; she also sought to be able to obtain a passport for him and for him to be able to travel outside of Australia. 

7. That Application came before the Federal Circuit Court on 25 August 2016. At an appearance before Judge Newbrun, it appears that the submissions made by the solicitor who then appeared for the father included that there were great concerns that the child (it must be X) would be enrolled into a religious school.  That appears to be the extent of the submissions made about this issue on that day.

8. What then occurred, though, by reference to the evidence, is that the parties attended upon a Family Consultant.  A Child Dispute Conference occurred.  When regard is had to the contents of the Memorandum prepared as a result of that, it appears that the mother had oscillated in relation to her Application to change X’s name; she outlined her desire to be able to raise the children in her faith when in her care.

9. The last dot point on page 3 of the Memorandum (above the heading “Co-Parenting Relationship”) records that the father reported to the Family Consultant that he had repeatedly raised issues about the mother converting to another religion and also converting the children; he said that he had significant fears about her engaging in “extremist behaviour”. 

10. Having regard to the evidence before me, this appears to be the first occasion on which the term “extremist behaviour” was used.

11. This is relevant because Departmental documents in evidence before me shows that, on 26 August 2016, there was a report to the effect that the mother was seeking to change the child’s name and to get a passport (which is accurate insofar as it refers to the July 2016 Application) and that “The mother is engaging in extremist behaviour”.

12. The Facebook post, about which I have already made comment, the comments from the unidentified male person and the mother’s Application to change the child’s name and obtain a passport (which I note, in passing, were actions consistent with the terms of the Parenting Plan into which the parties had entered on 21 February 2016) appears to be the extent of the evidence to provide a basis for the assertion that the mother was engaging in “extremist behaviour”.

13. The Departmental records of 26 August 2016 also include that there were concerns that the mother was going to take the child out of the country and engage in extremist behaviour.  The balance of the contents of the entry for that date seem consistent with the matters which form part of the father’s evidence in the matter before me over the last couple of days. 

14. That issue appears to be taken up in a further entry dated 27 September 2016, which reports that a referral was made to an organisation known by the name F Group (whilst it is redacted, it is clear from the evidence that it is much more likely than not to have been so). 

15. The note records that F Group declined the referral: “Solely because the mother has a connection to an [extremist group]…..[F Group] does not feel, as a home visiting service, it would be safe for workers.”

16. It is, therefore, immediately obvious that a consequence of the report to the Department was that that organisation declined to provide a service which was otherwise identified as being suitable and beneficial for X and the mother to receive at that point in time. 

17. I note, also in passing, that the father’s evidence during cross-examination yesterday when it was taken up with him, was that he, at first accepted the suggestion that he was the person who had told the Department that the mother was engaging in extremist behaviour; however, his evidence today was to the effect that he had not provided that information, but had only provided information to the Police Service. 

18. When asked yesterday, though, what he actually said, his evidence was to the effect that, from what he had heard when the mother was investigated, she had some sort of controversial flags or pictures on her walls.  When he was asked who “they” were (being a reference to those whom had investigated the mother), his evidence was that he was told the Australian Federal Police had done so.  When he was asked who told him that, his evidence was his former solicitor; he said he had received a lot of that information when he was represented by his former solicitor.

19. His evidence was to the effect that his former solicitor had told him that the Australian Federal Police had informed that solicitor that the mother was engaging in “extremist behaviour”.  When he was asked whether he could recollect anything else other than the reference to the pictures on the wall, his evidence was that that was all he could remember; he thought that that might have been all that was reported.

20. Despite that information, it is clear from his evidence that, at no time during any subsequent appearance before Judge Newbrun in the Federal Circuit Court, nor in any affidavit filed in the proceedings was there any reference by the father to that piece of evidence given during the course of his cross-examination. 

1. His evidence yesterday was also to the effect that he did not, at any time, hear his previous legal representative tell the Court (and by that I mean Judge Newbrun) about the information that he said his former solicitor had conveyed to him.

2. Today during cross-examination by Counsel for the Independent Children’s Lawyer, the father was asked some further questions about this topic.  He expressed that his concerns about the mother were more about whom she was hanging around; about whether they were extremists.  He did not want her, and by that I extrapolate to mean the children, also caught up in trouble.  He was concerned, given what happens in the world.  When he was asked what he meant by “extremists”, he said: people who murder or “blow up stuff”.

3. He was concerned that the mother was involved with people who held extremist views; he said that, at the time of the concerns (which I take to mean 2016), there was a lot of information in the media about events and he was frightened by it. 

4. When asked to particularise what it was that he relied upon for his conclusions, it seemed, particularly, to be the event of the unidentified male person answering the phone and being verbally abusive and intimidating toward him.

5. It is agreed by those at the bar table that, following a search of the relevant aspects of the file held by the father’s solicitor, there is no entry to suggest that there was a note taken, or made, of any information provided by any member of the Australian Federal Police about any investigation into the mother and any alleged links or connection with what has been described as extremist groups or (in the Family Report) as the possibility of associations with extremists.

6. Further, it is conceded that nowhere in any subpoenaed document available to the legal representatives in these proceedings is there support for the suggestion that the Australian Federal Police had any involvement with the mother or had undertaken any investigation of her: that is, nothing in the subpoenaed material produced to the Court and available to the legal representatives (but not necessarily in evidence before me) supports that contention.

7. That is of particular relevance because, following a review of Departmental material provided to her, Dr D noted, at paragraph 103 of the Family Report (under the heading of “Evaluation” in her discussions about the mother) that, contained within the notifications to the Department was information that centred around the mother’s “possible involvement with [an extremist group]”.

8. To the best of my knowledge, that is the first time at which the word “criminal” appears in the material. That term does not appear, from my perusal of the Departmental documents in evidence, to have been used at any time by any Departmental officer: their terminology appears to be restricted to use of the phrase “extremist groups”. 

9. It is also relevant to note that a document completed by the Department, (identified by the heading “Secondary Assessment Stage 2”) which appears to cover an assessment period from 10 October 2016 and 9 December 2016, notes, (at page 2 of 4) that a reported concern was that the mother may take X out of the country and engage in extremist behaviour.  There is no further information regarding this. The next relevant part of the entry is that the mother is reported to be heavily connected to her adopted religion; she was seeking to change X’s name to “Z”; that there used to be an allocated FaCS case worker for X but the case was closed, as FaCS made a referral to F Group, which was declined by F Group due to the reported extremist behaviour. There is no further information regarding this.

10. Relevantly, the entry also includes: “Father disclosed this, FLC.”

11. Later aspects of the Departmental documents record the Department’s conclusion v following an interview with the mother at her home, it seems, on 10 October 2016 – that the Department intended to speak with the G Group (which as I understand it, is the overarching organisation through which or under which F Group operates) to discuss with them there is no evidence of extremist behaviours. 

12. During the home visit to the mother’s home in October of 2016, at which X was present, the mother said she is not extremist. She told the Departmental officer that the father had asserted this in the Federal Circuit Court: that is true.  She reported that he believed that her religious conversion meant that she was extremist. 

13. Departmental records note that there were posters on the wall of the mother’s home but these were described as being “general religious sayings”. 

14. During the home visit, the mother sought a referral to the G Group.  It is also I think relevant to note that X was present during the discussion – which also dealt with the topic of the man, Mr H; according to the notes, X gave no reaction to the name, neither positive nor negative. 

15. The Department’s overall conclusion appears to be most helpfully set out in a document (compiled in relation to Y) headed “Contact Record”.  Whilst undated, page 3 of 5 of that document appears to suggest that a fax was received at the Child Protection Helpline on 26 August 2016: this relates back to the first engagement with the Department. 

16. Relevantly, the entry contains the following: “Consideration was given to completing a critical report in regards to the suggestion that the mother may be involved in extremist behaviour, and concerns she may be taking X out of the country to engage in extremist behaviour.”

17. There is no evidence or anything definitive to suggest what “extremist behaviours” refers to and whether the behaviour has anything to do with crime or radicalisation of the children.  Thus, the comments made by the Family Report writer at paragraph 103, to which I have already referred, must be seen in this context also.

Oral application made by Independent Children’s Lawyer that the father pay costs in a fixed amount

1. Counsel for the Independent Children’s Lawyer makes Application, as she is required to do, for an order that the father pay costs fixed in an amount of $8,297.47.  She does so based upon the costs notice provided (which I will mark as Exhibit B in the proceedings). 

2. Mr Schroder, who appears on behalf of the father, submits that the Court would be persuaded that the appropriate order, and one which is justified in the circumstances, is that which would see the father be ordered to pay the sum of $2,000.00, with such amount to be paid either over a six-month period, or to be paid by no later than six months hence.  That would be, therefore, by 18 January 2019.

3. Mr Schroder provides for the Court’s assistance the document that I have marked Exhibit A, which sets out his client’s financial circumstances.  He makes submissions that it is relevant to take into account: the father’s financial obligations to the two children he has with his current partner; his financial support of her; the fact that he bears the majority of costs for Y and will continue to do so into the future; the fact that he pays child support for X and will continue to do so into the future.

4. The submissions were also that nothing in the father’s conduct has caused any particular delay or has caused any particular issue in the conduct of the proceedings. 

5. I accept the submissions made by Mr Schroder. 

6. I take into account, of course, the starting point in relation to applications for costs (and the issue of costs) in this jurisdiction is that which is outlined in section 117(1) of the Family Law Act 1975 (Cth), which provides that, in proceedings under the Act, parties shall bear their own costs. Of course, provision is also made under s 117(2) that the Court may make an order departing from that circumstance, if it is satisfied that the circumstances justify the making of an order that a particular party pay costs.

7. The submissions Mr Schroder has made address those factors to which consideration must be given. I accept his submissions and consider that the circumstances justify the making of an order that the father pay the amount of $2,000.00, by no later than 18 January 2019, to Legal Aid New South Wales. 

8. I also have taken into account that the father has not been put to any legal expense himself in the proceedings, but has been in receipt of legal representation as a consequence of the provision of services by a legal service.

9. For those very short reasons delivered orally, I make an order that the father pay to Legal Aid New South Wales the sum of $2,000.00 by way of costs, and that such sum be paid by no later than 18 January 2019.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 July 2018.

Associate: 

Date:  18 July 2018