SIMPSON & HAHN

[2013] FamCA 773

FAMILY COURT OF AUSTRALIA

SIMPSON & HAHN [2013] FamCA 773

FAMILY LAW – CHILDREN – URGENT INTERIM ORDERS – the mother seeks to return to a former residential location with the children – the mother seeks to re-enrol one child in former school – one child refuses to spend any time with the father – one child has autism and requires special care.

FAMILY LAW – PRACTICE AND PROCEDURE – INTERIM ORDERS – Rice & Asplund principles.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZW.

Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Simpson

RESPONDENT: Mr Hahn

INDEPENDENT CHILDREN’S LAWYER: McCormack & Co Solicitors

FILE NUMBER: DGC 550 of 2010

DATE DELIVERED: 24 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 23 & 24 September 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCormack & Co Solicitors

Orders

1. The matter be adjourned for mention on 20 December 2013 at 10.00am for the purposes of listing the matter for final hearing and for the purposes of making procedural orders for the final hearing, noting that the final hearing of the matter is expected to commence on 11 March 2014 or earlier subject to the court’s availability.

2. Leave is granted to the Department of Human Services to inspect and photocopy the material produced in answer to the subpoena directed to Corrections Victoria and filed on 24 July 2013.

3. The Department of Human Services provide the court and the parties with a copy of the Forensicare report of the father when it is made available.

4. The Independent Children’s Lawyer is to forthwith provide the Department of Human Services with copies of the following documents:

   (a)the mother’s psychological report prepared by Dr E dated 24 February 2011;

   (b)the Family Report prepared by Mr T released 5 August 2010; and

   (c)all affidavit material sworn by Ms V in relation to the father’s supervised time at B Contact Centre.

UNTIL FURTHER ORDER, IT IS ORDERED THAT:

1. The orders made by Senior Registrar Fitzgibbon on 28 March 2013 remain in full force and effect.

2. The mother be permitted to return to Town U with the children J born … 2004 (“J”) and D born … 2009 (“D”) to reside with the maternal grandparents.

3. The mother be permitted to enrol the child J into the LP School.

4. The mother shall forthwith do all things and sign all documents necessary to authorise the principal of LP School and the manager of OS Pre School to provide to the father copies of all school reports, notices and applications forms for photographs in relation to the children J and D.

5. The father shall be at liberty to liaise with the principal of LP School and the manager of OS Pre School in relation to the progress of each of the children, including D’s introduction to kindergarten due to take place towards the end of 2013.

6. The father shall be at liberty to forward to the principal of LP School and the manager of OS Pre School a copy of these orders.

7. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 550 of 2010

Ms Simpson

Applicant

And

Mr Hahn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This matter has had a long history of previous applications before the Court.  An application for final parenting orders was filed on 19 August 2013 by the mother, Ms Simpson, after Cronin J directed on 5 June 2013 that the parties file a concise set of orders to be sought prior to today’s hearing.  The father, Mr Hahn, filed a response on 12 September 2013. 

2. The mother and father were married and began living together on 15 April 2000.  They separated on 29 May 2009.

3. There are two children of the marriage, J, who is aged seven years, and D, who is aged four years.  Recently, in May 2013, D was diagnosed with autism.

4. Final parenting orders had already been made by consent of the parties in the Federal Magistrates Court[1] by Federal Magistrate McGuire (as he then was) on 20 May 2011.  Part of those orders were that the parties share joint parental responsibility for the children and that the children live with the mother.  Those orders were made in circumstances where the mother had made serious allegations of violence and sexual abuse towards her and J by the father prior to the consent orders being made.

   [1] Now the Federal Circuit Court.

5. Since those orders, the children have continued to live with the mother, but the father has only had supervised time with the children at B Contact Centre each fortnight.

6. There have been numerous interim and procedural orders made by the Senior Registrar of the Family Court under previous applications, including for the appointment of an Independent Children’s Lawyer.  During the course of those hearings, the mother sought that the time with the father be suspended. 

7. Interim orders were made by Senior Registrar FitzGibbon on 28 March 2013 which effectively maintained the orders made by Federal Magistrate McGuire on 20 May 2011, but provided for an extension of the father’s supervised time with the children at B Contact Centre, where possible, from one and a half hours each visit to the maximum period of time which may be accommodated by the service; noting that the mother agreed to use her best endeavours to encourage J to attend the time spent at B Contact Centre and participate in the time to be spent with the father.

8. Because the application by the mother related to parenting orders which had already been determined, counsel for both parties agreed before Senior Registrar FitzGibbon on 28 March 2013 that there should be a hearing by the trial judge prior to the trial on the question of whether the rule in Rice & Asplund (1979) FLC 90-725 applied to the new application by the mother, to exclude the Court from considering the parenting issues afresh. This was listed before me for legal argument in a two day hearing.

9. Amongst other parenting orders, the mother seeks to have sole parental responsibility for the children and to suspend the father’s time with the children until certain requirements are met.  In response, the father seeks. amongst other orders, that the children live with him.

10. Registrar Field subsequently made an order on 20 September 2013 requesting information for the Court from the Department of Human Services and a response was filed by the Department and provided to the parties on the first day of the hearing.[2]  Counsel appeared for the Department of Human Services as amicus curiae and an Independent Children’s Lawyer also appeared having been appointed under a previous order.

    [2] Pursuant to s 69ZW Family Law Act 1975 (Cth).

11. Both the mother and father had the benefit of legal advice prior to the hearing before me, but their solicitors attended and filed notices of ceasing to act on the first day of the hearing because both parties did not qualify for legal aid.  I understand that there may be some further flexibility in the legal aid guidelines in the future.  This may assist the parties for the ultimate hearing of the matter and I would urge that the parties continue to pursue further applications for legal aid. 

12. On the first day of hearing, an application for adjournment was made by the mother, the Independent Children’s Lawyer and counsel for the Department of Human Services.  For the reasons set out below, the adjournment was granted.

13. The adjournment gave rise to an urgent interim application by the mother that she be permitted to return with the children to Town U from Suburb M and to make associated changes to J’s schooling.

14. The application was opposed by the father.

15. The application was granted and ex tempore reasons provided for the orders made. I indicated to the parties that I would provide those reasons in writing at a later date. These are those reasons. 

Background

1. The mother and the Independent Children’s Lawyer made an application to adjourn the hearing, pending an independent assessment of the father by Forensicare.

2. Counsel representing the Department of Human Services, as amicus curiae, also urged that the hearing be adjourned so that the Department could consider whether to make an application to intervene in the proceedings.  This was made on the basis that, at present, the Department of Human Services has an open investigation regarding concerns that J and D may be exposed to the risk of sexual harm if they have unsupervised access with their father, their uncle, Mr X H, and the paternal grandfather, Mr Y H. 

3. This investigation is referred to in the response from the Department of Human Services.  The father confirmed that he had consented to attend upon Forensicare for an independent assessment of his current risk and treatment needs.  This included whether offence specific treatment is recommended.  It was anticipated that this report from Forensicare would not be completed for about 11 weeks. 

4. Although he had consented to this assessment, the father opposed the adjournment of the hearing because he had not seen his son J since 2012.  He saw J and D for the purposes of a report from the family consultant, Dr P, on 5 March 2013 and he felt that this went well.

5. The father had also filed two psychological reports from Dr E dated 3 December 2010 and 7 December 2010.  These reports made assessments of the father.  He had also filed a psychological assessment of the mother, made by Dr E on 24 February 2011.  The father also relied on a report prepared by family consultant, Mr T on 5 August 2010, prior to the final hearing in the Federal Circuit Court in 2011. 

Application for adjournment

1. Having regard to the following factors, I acceded to the application that the proceeding before me be adjourned.  Those factors are:

   i)The complexity of the history;

   ii)The serious nature of the allegations made by the mother about the sexual and physical abuse of her and J;

   iii)The criminal history of the father;

   iv)The recent refusals by J to participate in spending even supervised time with his father;

   v)The recent developments outlined in the Department of Human Services response that the Department of Corrections indicated on 16 August 2013 that the father has not been the subject of any clinical assessment or treatment through Corrections Victoria Sex Offender Program which is at odds with the report of Dr E dated 3 December 2010 which states that Mr Hahn has: “…had treatment for his one charge of wilful and obscene exposure” and is at odds with the supplementary report of Dr E dated 7 December 2010 which states that: “It would appear, based on his police record, that following this incident he has received treatment”;

   vi)The allegations of the mother at paragraphs 67 to 72 of her trial affidavit, affirmed on 5 August 2013, about J's behaviour the morning after the visit to the family consultant, Dr P, and J’s treatment at CE Hospital Emergency and his notations about a wish list including that he wished he was dead;

   vii)The lack of legal representation of the parties; and

   viii)The Forensicare report was already the subject of an agreement to be provided as part of a recent protection application brought in the Moorabbin Children’s Court in respect of a two year old child of the father, Mr Hahn.  That child is the child of another relationship.  That matter was listed at Moorabbin Children’s Court and has been adjourned to 18 October 2013.

2. Based on all of those factors, I was satisfied that it was appropriate to consider the Rice & Asplund principles together with the Foresicare report in the trial.

3. Further submissions by all parties may be necessary after the Forensicare report is filed and before the trial date is confirmed. 

4. Accordingly, I adjourned the applications for mention on 20 December 2013 at 10.00 am where I will make procedural orders for the trial to be fixed for five days on 11 March 2014 or earlier if possible.  The trial date will be confirmed at the mention on 20 December 2013.

5. The father will then be in a position to obtain legal advice about the content of the Forensicare report and the mother will have a similar opportunity before returning to Court on 20 December 2013. 

The mother’s interim application

1. The children have been living in Suburb M with the mother and the maternal grandparents since mid-2012. This arrangement arose following a job opportunity for the mother, causing her to relocate with the children and the maternal grandparents from Town U to Suburb M.  During this time the maternal grandparents have lived with the mother and the children, providing support through rental assistance and care of the children.

2. Following D’s autism diagnosis in May 2013, the mother stopped work to take on his full time care and the special needs associated with his diagnosis.  Since that time, the maternal grandmother has become unwell and requires surgery followed by an indefinite period of recuperation during which time she will require the mother’s assistance.  It is the maternal grandmother’s wish to return to her home in Town U during her illness and to be cared for by her daughter.

3. The adjournment of the hearing raised urgent interim issues which were foreshadowed by the mother in her affidavit material, referring to the prospect of a relocation or return to Town U.  The circumstances of the ill-health of the maternal grandmother and the associated financial consequences for the mother added weight to the urgency of the application.

4. I concluded after reviewing the evidence in relation to the interim application which was supported by the Independent Children’s Lawyer and opposed by the father, that it was appropriate to make those interim orders.  I considered it appropriate to make those orders because it is in the best interests of the children pending the determination of the trial.[3]  I turn to my reasons in relation to the application that I heard from the mother.

   [3] Pursuant to s 60CA Family Law Act 1975 (Cth), where in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. The mother made an urgent application before me to be permitted to return with the children to Town U, to live with her parents.  She had previously lived in her parents’ home in Town U for three and a half years with the children.  She also made an oral application to return J to his former primary school, close to Town U, where she has enrolled him for term four which was to begin in two weeks.  At the time of the hearing it was school holidays, being the conclusion of term three.

6. This application was opposed by the father on the basis that it would not be in the best interests of J to change schools in the last term of grade three, especially because he has friends and is doing well at school in Suburb M.  J has already had the disruption of changing schools when the mother moved to Suburb M.  If the mother is permitted to return to Town U, the distance from the father’s residence will be greater.  The father is currently residing between Suburb O and Suburb BB.  Should he be successful in the trial in his application to have unsupervised time with the children, the distance will present a practical problem and a financial constraint for his access.

7. The father conceded that his child support payments were in arrears but not to the extent claimed by the mother.

8. The Independent Children’s Lawyer supported the application by the mother on balance, although he expressed some sympathy for the father's position about the disruption to J's schooling.  The Independent Children’s Lawyer submitted that the mother had given clear and cogent evidence about the reasons for the return to Town U and he accepted that Ms Simpson's mother was seriously unwell and would need assistance.  The Independent Children’s Lawyer accepted that the mother would be without rental assistance from her parents if they moved, and the financial costs of travelling to school in Suburb M from Town U will be prohibitive in circumstances where the mother has limited financial resources.  The Independent Children’s Lawyer was also comforted by the fact that J would be returning to the same teacher he had before he left the school and that there was no negative feedback from the principal at LP School in relation to the prospect of his return.

9. Ms Simpson gave evidence that her reasons for returning to Town U and changing school for J are as follows: 

   (1)Her lease at Suburb M expires on 2 October 2013 and she cannot afford to remain there without the financial support of her parents. 

   (2)She only moved from Town U to Suburb M because of an employment opportunity in mid-2012.  She moved there with her parents who supported her in the care of the two children and provided financial support, assisting with the payment of the rent. 

   (3)In May 2013 D was diagnosed with autism and the mother resigned her employment to take over the full-time care of D which had previously been undertaken by her mother when she was working. 

   (4)The maternal grandmother requires surgery for cancer and will need to recuperate in her own home, which is in Town U.  She will need the support and assistance of the mother.

   (5)D has a transition to kindergarten program to commence in Town U in term four, which will require the mother to attend regular appointments in Town U. 

   (6)The mother has spoken to the school principal and teacher, Ms KG, at LP School. Ms KG was J's teacher in grade two and will be teaching him for term four of grade three. 

   (7)The mother has spoken to J's teacher at Suburb M about the move and she has not raised any concerns and accepts that given the travel from Town U to Suburb M and the financial constraints of the mother, that the move is practical. 

   (8)J is doing well at school and is likely to adjust to the return to his old school and has expressed a wish to return to his friends there. 

   (9)The travel from Town U to Suburb M would involve approximately 250 kilometres per day.  The cost of petrol for this travel is beyond the financial resources of the mother, given her reliance on a carer’s benefit and child support which is in arrears.  The travel time would also be tiring and stressful for J.  It would also be prohibitive for the mother, having regard to her responsibility for the care of D.  Such travel is not practical.

10. I heard evidence from the mother in respect of those reasons and she was cross-examined by the father. Substantially there was no real challenge in relation to those reasons, apart from the issue of the distance for the father.  I also heard evidence from Mr XX, the maternal grandfather, who supported and corroborated the evidence given by the mother. 

11. I am satisfied on the evidence of the mother and Mr XX and the material filed in the trial that it would be in the best interests of J and D to return to the home of their maternal grandparents in Town U, where they have previously lived for three and a half years.  I am satisfied that there are cogent reasons for the return to Town U as outlined by the mother and that having regard to her financial situation, there are no other options.  Whilst it might be unusual to make orders for a change in residence where they are opposed on an interim basis, I am satisfied that this is not the usual relocation issue but rather might be characterised as a return by the mother and children to their previous place of residence.

1. This location is familiar, convenient, and financially beneficial having regard to the mother’s circumstances of having to relinquish her employment to care for the requirements of D’s autism.  The mother and children will have the continuity of their support network of the maternal grandparents and J will have the familiarity of school, friends and, in particular, his teacher, Ms KG.  There are no concerns that J is not coping with school. 

2. I am satisfied that the return of the mother and children will not jeopardise the time to be spent with the father because this has always been supervised at B Contact Centre. This is in fact a location more convenient to Town U than Suburb M, so it should present no further difficulty in travel arrangements for the children for the purposes of contact and may in fact, be less inconvenient in travel time for the children.[4]

   [4] Pursuant to s 60CC Family Law Act 1975 (Cth) how a court determines what is in a child’s best interests.

3. I am not satisfied that there is any other alternative consistent with the welfare of the children for their accommodation, given the financial circumstances of the mother and the need for the support of D’s special needs.  I am also satisfied that the kindergarten program contemplated by the mother is one which is attempting to accommodate D’s special needs. 

4. I propose to make the orders on an interim basis in respect only of this application and order that the orders made by Senior Registrar FitzGibbon remain in force until the trial. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 24 September 2013.

Associate: 

Date:  11 October 2013.