Salway and Fegley

[2014] FCCA 839

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALWAY & FEGLEY [2014] FCCA 839

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – where matter not ready to proceed – independent children’s lawyer – appointment of independent children’s lawyer – intractable conflict between parents – family violence – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 68L

Cases cited:
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MS SALWAY

Respondent: MR FEGLEY

File Number: SYC 6044 of 2013

Judgment of: Judge Scarlett

Hearing date: 2 April 2014

Date of Last Submission: 2 April 2014

Delivered at: Sydney

Delivered on: 2 April 2014

REPRESENTATION

Solicitor for the Applicant: Mr Crawford

Solicitors for the Applicant: Crawford Ryan Lawyers Pty Limited

Counsel for the Respondent: Ms Breeze

Solicitors for the Respondent: H. A. Miedzinski Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The interests of the children [X] born [in] 1998, [Y] born [in] 2002 and [Z] born [in] 2008 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to arrange this representation.

2. Within fourteen (14) days of this Order the solicitors for the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and all other relevant documents.

3. The children [X], [Y] and [Z] are to spend time with the Respondent Father as follows:  

   (a)From 6:00pm on Friday 11 April until 6:00pm on Friday 18 April;

   (b)Each alternate weekend during the school term from 6:00pm on Friday until 6:00pm on Sunday commencing on Friday 2 May 2014;

   (c)During the Winter School Holidays from 6:00pm on Friday 27 June until 6:00pm on Wednesday 9 July 2014; and

   (d)Each alternate weekend during the school term from 6:00pm on Friday until 6:00pm on Sunday commencing on Friday 25 July 2014.

4. For the purposes of changeover between the parties the children are to be delivered to and collected from the foyer of the [H] Police Station.

5. Each of the parties is restrained by injunction from:

   (a)administering any form of physical discipline or chastisement to any of the children;

   (b)criticising or denigrating the other party in the presence or hearing of any of the children or permitting any third person to do so;

   (c)discussing with the children the private life or activities of the other party; and

   (d)discussing these court proceedings with any of the children.

6. The Application is adjourned to Tuesday 29 April 2014 for interim hearing at 12:00 noon.

7. The parties are to file and serve all further affidavit material not to exceed ten (10) pages of text no later than Tuesday 22 April 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6044 of 2013

MS SALWAY

Applicant

And

MR FEGLEY

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an application for interim parenting orders to be made.  It is an interim hearing. 

2. The proceedings between the parties commenced in the Local Court of New South Wales, [omitted] and there were some interim orders made by consent in that Court providing for the time that the children were to spend with each parent. 

3. Those orders were made by the learned Magistrate to cover the situation between the 11^th December 2013, when the matter was last before the Local Court, and the first return date in this Court as the learned Magistrate transferred the proceedings to this Court. As it turned out, the return date that was allocated in this Court was 17^th March 2014.  It was on that date that the matter came before me for the first time. 

4. The Applicant Mother had filed an amended application which was indeed filed on 17^th March.  On that date the Father’s solicitor thought that there should be an urgent interim hearing.  That was pressed on the Court on more than one occasion during the day.  I indicated that I would not exceed to that application for two reasons:

   (a) There were already before the Court interim hearings that had been listed and would have priority; and

   (b)I had made an order under section 11F of the Family Law Act 1975 (Cth) that the parties were to attend a child dispute conference and I had been advised that the earliest available date for the Child Dispute Conference was 2:00pm Tuesday 1 April 2014.

5. Accordingly I listed the application for an interim hearing at 10:00am this morning and made orders relating to the filing of affidavits which was to be by 28^th March 2014.  So the matter came before me listed at 10:00am for an interim hearing. 

6. The memorandum from the Child Dispute Conference was made available.  I released it to the parties.  I allowed the parties’ legal advisers access to the material produced under subpoena.  What has since happened is that the Respondent Father seeks orders that the children should now live primarily with him and that their mother’s time with the children should be supervised.

7. The solicitor for the Mother seeks an adjournment on the basis that this is not the case that he and his client came here to meet. Counsel for the Father opposes the adjournment and submits that the matter is of such urgency that the Court should embark on a hearing this afternoon. 

8. It is patently obvious that the matter is not ready for an interim hearing.  Despite the fact that I was strongly pressed on two occasions on 17^th March to conduct an interim hearing on the spot, at a time when the only material the Father had filed in this Court was a Notice of Address of Service, it is quite clear that the case that the Father wishes to put is vastly different from the case that was previously argued before me.

9. This I think is one of the advantages of the docket system which this Court has used since its inception in 2000, that the Court is aware of what has gone on before and that the application comes before the judge who is to decide it on its first time in the Court.  The Father did indeed file his affidavit by 28^th March, the time required.  Indeed it is true, as his counsel submits, that contained within that affidavit are allegations of erratic and violent behaviour by the Mother, including allegations that the Mother has chastised the children, including the parties 15 year old daughter, by striking her.  In that sense, the allegations are not new.

10. I note the family consultant in her extensive memorandum to the Court expressed some surprise that, despite the allegations of family violence, neither party had filed a form 4 Notice of Child Abuse or Family Violence detailing the allegations.  Why in particular I say that this matter is not ready is that despite the Father’s affidavit detailing his allegations having been filed in time on 28^th March, the Father’s Response to the Mother’s Application was not filed until this morning, and indeed the Court’s copy of the Response did not become available to the Bench until approximately 11.30am this morning when it was handed up by counsel. I need hardly mention is an hour and a half after the hearing was scheduled to start.

11. Of course what has since happened is that after reading the material produced on subpoena which is I understand, quite extensive, the Father now seeks other orders and does not now seek the orders that were set out in the Response that he filed this morning.  True it is that in the Response that was filed this morning, he did seek that the children should all live with him and that they should spend time with their mother.  What he now seeks, as set out in the minute of orders handed up to the Court this afternoon, is that the children’s time with the Mother should be not only limited but supervised.

12. It has been put to me but I do not accept that the position that the Father is now seeking is no more than a return to the status quo.  That does not appear to be the situation at all.  There was a status quo were two children were living with one parent and the youngest child was living with the other.  There was a change after proceedings in the Local Court involving a form of shared time between the parents.  At no stage was there any situation in respect of the orders that I have seen, or the evidence that I have read, that the children were all living with the Father and only spending time with the Mother under supervision.

13. That is not a return to the status quo. It is a radical change to the arrangements.  I have commented today and I have previously commented in earlier matters that it is a serious thing to seek a change of primary residence of children at an interim hearing.  I am not saying that such things do not occur because they do and indeed I have made such orders but it is not a decision to be made lightly.  The orders sought by the Father that represent the latest position were in fact made available at 2:15pm and I am informed that the Mother’s solicitor had received a copy of those orders only slightly before that time.

14. Accounts differ as to the exact length of time but the best I can make out is that it was at most a quarter of an hour before that time or possibly some time less.  It is hardly surprising that the Mother’s solicitor wishes to obtain detailed instructions. 

15. A case outline document was submitted by counsel for the Father at 2:35pm.  This was in respect of a hearing that was scheduled to commence at 10:00am and of course the case outline document has been somewhat invalidated.  Not because of the chronology or other matters like that but because of the orders that are now sought.

16. It is also significant and I was not made aware of it, at least until I read the memorandum from the family consultant, that the parties have proceedings in the Local Court relating to apprehended domestic violence matters.  They are to take place on 16^th April, approximately 13 days later.  The family consultant has recommended the appointment of an Independent Children’s Lawyer for the children. 

17. Mr Crawford for the Applicant Mother and Ms Breeze for the Respondent Father are both in agreement that this is a matter where such an appointment would be warranted noting that the facts as they appear in accordance with some of the guidelines laid down by the Full Court of the Family Court and the 1994 decision of Re K.

18. I am certainly of the view that an Independent Children’s Lawyer should be appointed but I am not of the view that the Court should embark on a hearing changing the residence, the primary residence of the children, at the shortest of notice without the availability of appropriate evidence and appropriate information.  It would seem to me that if the Court is to appoint an Independent Children’s Lawyer, then the Independent Children’s Lawyer would have a significant contribution to make on deciding this very issue.  As I said, I would also be interested to hear the outcome of the proceedings before the Local Court on 16^th April.  But it is quite clear to me that this matter and the orders that have been sought and the changes to the orders that have been sought is not, at this stage, ready for hearing. 

19. It has been put to me that it is not in the children’s best interests for the Court to rush into a hearing, changing the residential arrangements.  I am firmly of the view that the Court needs a firm ground before it considers whether it is, in fact, in the children’s best interests to change their primary residence. 

20. It also does not appear to me to offer procedural fairness to the Applicant Mother for her to be pitch-forked into a hearing at virtually no notice in respect of a very different case from the one that she came here to meet because it is quite clear, I say again, that the orders now being sought are very different from the case that was originally put. 

21. It was certainly not put to me on 17^th March that the Father was seeking a change of residence of the children and, indeed, the first inkling that the Court had received was when this response was received an hour and a half after the hearing was scheduled to commence. 

22. I propose to grant the adjournment.  I will set a date for an interim hearing. 

23. I will, however, order that the children’s interests be separately represented by a lawyer under the provisions of section 68L of the Family Law Act. Legal Aid New South Wales will be requested to arrange this representation.

24. I am mindful of the fact that there are currently no orders in force relating to the Father spending time with the children.  In view of what appears to me to be the intractable conflict between the parties, I think that that situation needs to be remedied and that there should be some orders made to cover the situation until this matter can next come before the Court.  There is also the issue of the allegations of the children having been struck, presumably for disciplinary reasons. 

25. I will say now that I consider it inappropriate at the very least for a child the age of the parties’ daughter [X], who was born on [omitted] 1998 and is now 15 and a half years old, for her to be subjected to any form of physical chastisement, and I would also have some concern about the parties’ second child who was born on [omitted] 2002 and is approximately 11 and a half years old.  I am of a view that the Court should make orders restraining both parties by injunction from using any physical chastisement of the children. 

26. The solicitor for the Mother, Mr Crawford, has handed up a handwritten minute of proposed orders which are not orders by consent, but orders to which he says his client would consent, restraining the parents from using physical discipline on the children, restraining from denigrating the other parent in the presence of children, and restraining them from discussing the private lives or activities of the other parent with the children.  I do not intend to ask the parties to consent to orders of that nature.  I will impose them as interim orders. 

27. I also propose to make an order restraining the parties from discussing these proceedings with the children.  I will find a date when the matter can be heard but it will be heard when the available evidence can be considered and when there is not a constant change to the orders that are being sought. 

28. It appears, though, very clear to me that the matter, as it now stands, is certainly not in a position to proceed, certainly noting the rather serious orders that the Father seeks.  The earliest I think that could be conveniently arranged, noting the time it takes for an Independent Children’s Lawyer, would be Tuesday 29^th April 2014. 

29. I will make it clear that I would take a less than sympathetic view of any proposed proposal to make any other major changes to the orders sought by either party unless the parties’ legal advisers could convince me that there was a very good reason for doing so.  So I would ask the parties’ lawyers to take that view on board.

30. What I propose to do is, on an interim basis, to make the orders set out in the Mother’s case outline, but they are only for the purpose of tiding the parties over until the matter is next before the Court in 27 days’ time. I will consider them then at the interim hearing. 

31. As to changeover, I note that a police station at [H] is sought.  That is all very well. I will want some people to come up with something a little bit more suitable than the [H] police station on 29^th April 2014. 

32. I do not believe that it is in the children’s best interests for there to be long-term orders relating to changeovers at police stations, and I recently handed down another decision to that effect.  It was an issue, you might recall, Ms Breeze, in the matter in which you were involved where there was some discussion about another police station and the unsuitability of such an arrangement, so I think you know my view on that.  Between now and then, that is where it will be, but I would like some more constructive and child-friendly suggestions on 29^th April 2014.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 April 2014