Schultes and Schultes

[2019] FCCA 2348

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHULTES & SCHULTES [2019] FCCA 2348

Catchwords:
FAMILY LAW – Parenting – interim – who child should live with.

Legislation:

Family Law Act 1975 (Cth), ss.68L(2), 68Q

Applicant: MR SCHULTES

Respondent: MS SCHULTES

File Number: MLC 9015 of 2019

Judgment of: Judge Harland

Hearing date: 14 August 2019

Date of Last Submission: 14 August 2019

Delivered at: Melbourne

Delivered on: 14 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Arnold

Solicitors for the Applicant: Power & Bennett

Counsel for the Respondent: Mr Kent-Hughes

Solicitors for the Respondent: Heinz & Partners

ORDERS

1. The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Ballarat in the week beginning 30 September 2019 at 10:00am in the duty list.

2. Pursuant to s.68L(2) of the Family Law Act1975, the child [X] born … 2006 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent  children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

3. The child live with the father.

4. Pending further order, the father have sole occupation of the home at Property B.

5. The child spend alternate weekends with the mother.

6. Pursuant to Section 68Q of the Family Law Act 1975 the extent to which this order is inconsistent with any family violence order between the parties, the family violence order is invalid.

7. Each of the parties, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and discussing these proceedings with or in the presence or hearing of the child or upon permitting any other person to do so.

8. Each party, their agent or servant be restrained from discussing court proceedings and showing court documents to the child.

AND THE COURT DIRECTS THAT:

1. The Registrar provide a copy of these orders and the accompanying reasons to the Registrar of the Magistrates’ Court of Victoria.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9015 of 2019

MR SCHULTES

Applicant

And

MS SCHULTES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The dispute concerns [X], who is 12. There are competing allegations by the parents with respect to family violence and aggression. It is a very recent separation and what seems apparent is that, whilst, certainly, there were verbal arguments throughout their relationship, there was no involvement of the police until after separation. There are no issues raised with respect to drug use or mental health, apart from the father’s allegation that the mother has anger management issues and difficulties regulating her emotions. 

3. Both parties seek that [X] live with them in the former matrimonial home and spend some weekend times with the other parent. The father’s position is that, if I determine that [X] should remain with her mother, then he does not seek to have sole occupation of the home, as his view is that [X] should remain in the home that she knows with whichever parent she is to live with. The mother does not take that position and seeks to remain in the home regardless of whether or not I order [X] to remain living with her and this is despite the fact that she has repartnered.

4. [X] has been exposed to the conflict between her parents and her parents have failed to protect her from that. The fact that the father showed her the intervention order is of concern to me, as that is entirely inappropriate for a child. 

5. It is also clear that [X] would have been distressed by the police being called to the home on … 2019, when the mother was asked to leave. I cannot determine what occurred on that occasion and whether she was asked to leave for the father’s safety or asked to leave for her safety. It may well be that a subpoena to the police provides some clarity to that, and it may be an issue for trial, as it is very clear that the parties have very different versions of events with respect to this and other matters.

6. It is not disputed that after the mother left the home, she went to Country C for a few weeks, she says, for a wedding. It is also not disputed that up until the order made in the Magistrates’ Court on … 2019, the mother only saw [X] on a few occasions. There is a dispute as to why that is so and it is the mother’s case that the father is negatively influencing [X] against her and obstructing her relationship with [X].

7. The father denies this and points to the fact that the letter that he received from the mother’s solicitors, dated 7 July 2019, only addresses property issues and makes no mention of parenting issues at all. That is of some significance, in my view. It is inconsistent with the mother’s claim about the father obstructing her time. The father’s case is that he has had a close relationship with [X] and that the mother has been physically violent towards [X]. [X] denied this to the family consultant, but says that the mother has also been verbally angry and abusive. The mother denies this and says that she has been the primary carer for [X] and that the father is not able to provide the same level of care, particularly with respect to the state of the house.

8. It is also in dispute between the parties as to whether or not [X] has been attending school regularly. The mother filed an application and summons for an intervention order on 19 July 2019, wherein she refers to the incident on … 2019 at the former matrimonial home. She says that she was verbally abused for several minutes by father in front of the daughter, and says that the police advised her to leave the home for her safety. She said that she did not want to leave [X], but did with some hesitation. She also complains of abusive messages that the father sends to her, to her family in Country C and also her son.

9. Looking at the documents, this seems to be saying that the application is dated 5 July 2019 with the return date on 19 July 2019. It is confusing because there is another copy of this application that is in the same terms, but refers to a hearing dated 30 August 2019.

10. In any event, what is not disputed is that the mother attended the Magistrates’ Court and had the matter abridged and the matter came before a Magistrate on 7 August 2019. The father says that he discovered the notice in his postbox and was able to attend Court, but without a legal representative. He says that the Magistrate refused to hear from him. The mother, in her affidavit in reply, does not dispute that.

11. As a result of the orders that the Magistrate made on that day, the father was excluded from the home. As [X] was named on the order as a protected person, [X] was not allowed by the police to go with her father. It is clear that that was a traumatic incident for her. She reported to the family consultant this afternoon that the current situation is crazy and that the police came to the house yelling. She was pleading to stay with her father and has continued to tell her mother in the days since that she wants to live with her father. She reported isolating herself in her room and having her phone taken away from her on occasion. The mother refers to herself and her son taking her phone away on occasion, the mother says, because she has concerns about breaches to the intervention order.

12. [X] was clear in her views to the family consultant that she wants to live with her father. She talked about positive experiences with him and talked about her mother having a short temper and yelling, but denied that she ever hit her. She did complain about her brother pulling her hair. She was willing, however, to spend time with her mother on alternate weekends and indicated to the family consultant if she was ordered to live with her mother, she would do that.

13. I am very troubled by the chronology in this matter and how it has come about that the father has been excluded from the home and [X] witnessing not just the conflict of the police attending in June, but the distress in August of wanting to leave with her father and not being able to.

14. It is of most concern if the father was not able to make any submission to the Magistrate, which seems not disputed. I am aware that the Magistrates’ lists in family violence matters are incredibly burdensome, such that they only have a few minutes to deal with each matter. Nevertheless, I have no doubt that [X] has been further traumatised by being in the middle of this dispute. 

15. The mother’s position is that [X] has settled into her care and is happy, and it is part of her case that the father has influenced [X] against her. I note that [X]’s older sister, who is over the age of 18 and living independently, has filed an affidavit in support of the father. What also is of some concern to me is that given [X] is a girl who is almost 13, undoubtedly still a child, but an intelligent child, expressing very clear views. In circumstances where, regardless of what the reasons are, and it is not something I can determine at this stage, she has been living with her father in the former matrimonial home since separation until the traumatic events that occurred just last week. 

16. Both parents can be criticised for failing to protect [X] from their conflict, and involving her in the dispute, which is detrimental to her emotional wellbeing. It is also striking that the father’s position is that he only seeks to be in the home if [X] is ordered to live with him, whereas the mother’s position is that she wishes to be in the home regardless of whether or not [X] is there. The home provides an opportunity for stability for [X], as well as her remaining at her school. I have some real concerns about that. I also have concerns about [X]’s views simply being ignored. 

17. I have the power to make orders that are inconsistent with the orders made by the Magistrates’ Court pursuant to s.68 either Q or R, and I propose to do that. I also propose to make orders for [X] to live with the father and for the father to have sole occupation of the home so that [X] can be in the home that she is familiar with, pending further order. I am satisfied that I have power to do this, even though it is essentially overriding the order that the Magistrate has made last week in somewhat concerning circumstances. I will order that [X] spend alternate weekends with her mother. I am not going to make an order about parental responsibility as it is not necessary that I do so. There are real issues in this case about family violence. Given [X]’s age and the issues that are raised, I think it is appropriate to appoint an Independent Children’s Lawyer to represent her views.

18. I am going to appoint an Independent Children’s Lawyer.

19. I will also direct that the Registrar give a copy of these orders to the Magistrates’ Court, and the reasons once they are settled. I will transfer the matter to the Ballarat circuit in the next duty list. Otherwise I will request that the family consultant explain the orders to [X] and then we will make the usual order releasing [X] from the child dispute section into the father’s care.

20. I will make a mutual non-denigration order and an order that the parties do not discuss adult issues with this child and do not show this child any court documents or allow anyone else to do so, such as adult siblings.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  23 August 2019