STEINER & STEINER

[2020] FamCA 473

FAMILY COURT OF AUSTRALIA

STEINER & STEINER [2020] FamCA 473

FAMILY LAW – INJUNCTIONS – Personal protection – Where the mother seeks that further injunctive orders be made against the father for her and the children’s protection – Where injunctions already in place for the mother and children’s protection against the father – Application dismissed.

FAMILY LAW – CHILDREN – Where the mother seeks orders that the father pay the monthly mortgage repayments on the former family home where she and the children reside, that he pay all of the children’s school fees and half of their medical costs – Where there is an outstanding application pursuant to section 79A of the Family Law Act 1975 (Cth) to set aside previous property orders – Where the mother has not exhausted administrative options available within the child support legislation – Application dismissed.

Child Support (Assessment) Act 1989 (Cth) s 4
Family Law Act 1975 (Cth) ss 64B, 66E, 68B

Bagala & Bagala (2009) FLC 98-043

APPLICANT: Ms Steiner

RESPONDENT: Mr Steiner

INDEPENDENT CHILDREN’S LAWYER: Ms Cole

FILE NUMBER: PAC 1344 of 2016

DATE DELIVERED: 10 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 19 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Mr Bailey

SOLICITOR FOR THE RESPONDENT: G J Gooden Solicitor & Notary Public

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The remainder of the mother’s interim application being orders 2 and 3 of the interim orders sought in her further Amended Initiating Application dated 19 December 2019 is dismissed.

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 Steiner & Steiner 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 1344 of 2016

Ms Steiner

Applicant

And

Mr Steiner

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings have been in dispute concerning an adjustment of their property interests and the parenting arrangements for their two children since the breakdown of their thirteen-year marriage in 2016.

2. Orders were made with the parties’ consent in April 2016 apparently resolving both aspects of the dispute. However, in January 2019 the mother filed an application seeking to vary the parenting orders and set aside the property orders pursuant to section 79A of the Family Law Act 1975 (Cth) (“the Act”).

3. Trial directions have been made in relation to the section 79A application but they have not been complied with so that hearing is yet to be fixed.

4. The ambit of the parenting dispute is now limited with final orders having been made on 22 July 2019 with the consent of the parties that the children live with the mother and she have sole parental responsibility for them. These orders were made on the basis that the only specific issues relating to the children which require determination by the Court were understood to relate to the father’s time with the children and restraints on his conduct.

5. An interim parenting application was determined by a Senior Registrar in September 2019 which included the making of various restraints against the father.  The Senior Registrar declined however to make one of the injunctive orders sought by the mother restraining the father from being in two named coastal towns on the basis that he considered the order as sought to be too broad.

6. In this interim application the mother seeks an injunction restraining the father being present in particular locations within the same coastal towns and orders that the father be responsible for mortgage payments for the former family home, school fees for the two children and half of the children’s medical costs.

7. The father opposes the orders sought by the mother and seeks that her application be dismissed.

Background

1. The father, who is 42, and the mother, who is 41 were married in 2002.

2. In 2003 the parties’ first child, a daughter, was born (“the older child”). In 2007 the mother gave birth to another daughter (“the younger child”).

3. The parties separated in about December 2015.

4. In April 2016 orders were made with the parties’ consent which provided that they have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father each alternate weekend and half of each school holiday (“the April 2016 orders”).  Orders in relation to the parties’ property provided for the father to transfer his interest in the former family home and a property in a coastal town to the mother and that she transfer her interest in another property in Sydney and another property in the same coastal town to the father.

5. The mother deposes to numerous incidents of physical, psychological and sexual abuse perpetrated by the father following separation towards her and the children, as well as abusive conduct by the paternal grandfather and his partner. The father in turn alleges stalking and harassment by the mother and that the older child has physically assaulted him.

6. In May 2016 the father filed a contravention application which he ultimately withdrew after the parties attended a Child Dispute Conference with a family consultant.

7. The mother alleges that on 5 September 2016 an incident occurred at the older child’s school in which the father grabbed this child by the wrists, shook her and verbally abused her.

8. The mother describes a series of incidents occurring while both parties were holidaying in the coastal town in which they each own property in January 2017. Each party alleges that the other engaged in harassing and stalking conduct.  Although I understand that reports were made to police in relation to these incidents neither party adduced evidence of police records.

9. In January 2017 the father filed another contravention application.  Subsequently, orders were made with the consent of the parties that the children spend supervised time with him for two hours each weekend and the parties be restrained from denigrating the other through any social media.

10. The mother alleges that the father sexually assaulted the older child in April 2017 by touching her breasts while she was in hospital recovering from a surfing accident. This incident was referred to the Joint Referral Unit (presumably of the Department formerly known as Community Services and police) for investigation in August 2018 but was not investigated further by that unit at the time.  

11. In September 2017 the father withdrew his second Contravention Application.

12. In December 2017 the children (by their tutor) commenced proceedings in the Supreme Court against the father. The details and status of these proceedings are unclear. 

13. The mother alleges that there were further disclosures made by the older child after she recovered from an anaesthetic in October 2019 concerning the earlier allegations of an indecent assault perpetrated by the father in April 2017 which the mother claims is being investigated or in some way dealt with by “FACS” which I understand to be a reference to the Department of Communities and Justice (“the Department”).  Any relevant departmental records were not adduced in evidence. 

14. In January 2019 the mother filed an Initiating Application in the Federal Circuit Court seeking orders to vary the previous parenting orders and to vary the previous property orders pursuant to section 79A of the Act.

15. In this renewed application the mother sought parenting orders that she have sole parental responsibility for the children and that the children live with her. She also sought that quite extensive injunctive orders be made for the protection of the children and herself such that the father be restrained, inter alia, from harassing, stalking and intimidating she and the children, causing or threatening them bodily harm, approaching them at their home, spending time or attempting to contact or communicate with the children or the children’s school, denigrating the mother or children on social media and having, posting or uploading any photo of the children to his social media accounts. The mother sought property orders, in summary, that the father pay to her the sums of $160,000, $20,000 and $15,000 as contributions to various expenses as well as an adjusting payment of $324,939 to amount to a 70 percent division of the parties’ property interests in her favour.

16. On 29 April 2019 with the consent of the parties orders were made by a judge in the Federal Circuit Court setting aside the April 2016 parenting orders and providing for an interim arrangement in which the mother has sole parental responsibility for the children, the children to live with her and she is permitted to travel internationally with the children without the consent of the father. It was also noted on this date that the father opposed the mother’s application for relief under s 79A of the Act. He sought that the property aspects of the mother’s application be transferred to the Supreme Court where there are pending proceedings commenced by the children against him which he contends involve common factual issues. The father also did not consent to the injunctions sought by the mother against him as contained within her Initiating Application filed in January 2019.

17. On 21 May 2019 the proceedings were transferred to this Court.

18. On 22 July 2019 with the consent of the parties the previous parenting orders that the children live with the mother, that she have sole parental responsibility for them and the order as to overseas travel were made as final parenting orders. The parties agreed that these orders were made on a final basis on the understanding that there were some outstanding parenting issues that needed to be resolved.

19. On 9 August 2019 trial directions were made for a hearing of the mother’s section 79A application.

20. On 19 September 2019 a Senior Registrar heard an application by the mother for interim parenting orders which included injunctions under s 68B of the Act imposing various restraints on the father. The Senior Registrar made orders restraining the parties from making derogatory comments about each other in the presence of the children, restraining the father posting material relating to the children on social media and requiring him to remove photographs of the children or the mother that had been posted and restraining him from approaching the mother and children at children’s schools or mother’s home. The Senior Registrar declined to make the orders sought by the mother restraining the father from being in two nominated coastal towns (described as “suburbs”) where they each owned property and the mother claims she is also employed as he considered these orders to be too broad.

21. The mother asserts that the older child was diagnosed with stage four cancer in September 2019. Very few other details are known concerning this matter. The father deposes that he was first informed of the older child’s illness in October 2019 but maintains that the mother has not otherwise informed him of the older child’s diagnosis, treatment or prognosis.

The Child Responsive Program Memorandum

1. In November 2019 the parties and older child attended upon a family consultant for the preparation of a Child Responsive Memorandum which was released to the parties 5 December 2019. The younger child was not available for the interview.

2. The family consultant reported that there was ambiguity in the father’s written documents regarding his proposal for the children. During the interview, the father initially made no proposal for parenting orders but later stated he wanted to be more involved in the children’s lives, including being provided with information about the children’s schooling and medical needs.  He has not articulated his current proposal for final parenting orders as outstanding matters.

3. The mother reported that she is not currently in paid employment as she is providing full time care to the older child. The mother reported that the younger child lives with the maternal uncle and his family in Queensland when the older child is in hospital receiving treatment. The mother told the family consultant that the older child is being treated with chemotherapy and experiences a number of other health complications as a result of her treatment. She reported that the older child’s prognosis is not known but said there is a possibility she would not survive the treatment.

4. The mother reported that the younger child suffers with “stress induced alopecia” and the onset of this illness coincided with the children commencing spending supervised time with the father in 2017.

5. The older child who was 16 years old at the time of the interview told the family consultant that she did not want a relationship with the father or the extended paternal family and detailed extensive negative experiences of the father throughout the parties’ relationship to the present. She reported experiencing verbal, sexual and physical abuse perpetrated by the father.

6. The mother reported to the family consultant that the father perpetrated extensive verbal, physical and sexual abuse towards her throughout the relationship. She also reported that the father and paternal grandfather had threatened her with guns and knives and had threatened to kill her.

7. The mother reported that since the making of the injunctions in September 2019 there had been a decrease in the father’s harassing behaviour but that other people had been providing messages to her on behalf of the father.

8. The father reported that the mother was verbally abusive towards her during the relationship. He reported that she would undermined his relationship with the children by involving them in adult matters, encouraged the children to write him abusive letters and encouraged the older child to physically assault him which he says occurred on a number of occasions following separation.

9. The family consultant opined that there was no functional co-parenting relationship. She opined that if there was veracity to the mother’s allegations of family violence then it may be that the children have experienced protracted and ongoing exposure to family violence, which she opened “can be highly damaging to children’s safety, wellbeing and development”. The family consultant was of the view that as it did not appear that the father is currently seeking to spend time with the children, it may provide the children with some reassurance and security if orders were made that they spend no time with him.

10. On 19 December 2019 there was a court event before a Registrar for the purposes of determining whether trial directions in relation to the section 79A application had been complied with. The Registrar determined that these proceedings were not ready to be allocated final hearing dates as the parties had not yet filed their affidavits. Time for compliance was extended for both parties. A final date for the hearing of the section 79A application is yet to be fixed.

11. On 20 January 2020 orders were made that the parties participate in family dispute resolution in relation to the outstanding final parenting orders sought by the mother. The Court was informed by the ICL that the parties had attended family dispute resolution prior to the interim hearing but no resolution as to any of the outstanding issues was achieved.

12. The mother alleges that on 27 January 2020 the father stalked and followed her and the children through suburbs in Sydney near her home at a time where injunctive orders were already in place against the father for the protection of herself and the children.

13. The interim hearing took place on 19 February 2020 and judgment was subsequently reserved.

The Orders Sought

Injunctions

1. As discussed, at the interim hearing in September 2019 the Senior Registrar dismissed the mother’s application for an injunction restraining the father from being in two neighbouring coastal towns on the basis that the terms of such an order were too broad.

2. The mother has now somewhat narrowed the scope of the injunctions she seeks which are as follows:

   2. That pending further Order the Respondent shall not enter or be within the area within and bounded by:

   i)The corner of B Street, C Town and D Street, C Town in the State of New South Wales; and

   ii)F Street, G Town and D Street, G Town, in the State of New South Wales

   And the areas in between the geographical area and locations referred to at 2i and 2ii above.

3. The mother also sought in her Outline of a Case a general order that an injunction be made for “[p]ersonal protection when we are in the specified areas of the two named coastal towns” but this was not pressed following an interchange with the mother and bench in the course of the hearing.

4. The mother seeks the injunctions in relation to the father’s presence in the two named coastal towns as the maternal grandmother resides in the area, the mother owns a property in this area, she and the children holiday in the area and the mother engages in some employment in the area. The mother contends that the father has deliberately chosen to spend holidays in this region in the past while she and children are in the area and has stalked and perpetrated verbal abuse towards her, the children and members of her family.

5. Although the mother details in her affidavit numerous allegations of physical, psychological and sexual abuse perpetrated by the father towards she and the children as well as abusive conduct by the paternal grandfather and father’s partner dating back to shortly after separation none of the more serious incidents are said to have occurred since January 2017.  

6. The mother relies on the affidavit of a friend/acquaintance of May 2019 to support her contentions as to the father’s alleged conduct.  This person deposes to observing the stalking, intimidation and harassment perpetrated by the father and his partner but does not provide any particularity in relation to events in recent years.

7. The mother also relies upon a Psychological Assessment Report prepared by the children’s treating psychologist dated 1 July 2018. The report of the treating psychologist contains the following:

   [The children] explicitly expressed during consultations their fears and complaints that they hold regarding the father and they describe in detail abuses on them by the father, their paternal grandparents and a girlfriend of the father, referenced as [the father’s partner].

   It was noted during the assessments at … that [the children] exhibited significant mental distress from the father, which is indicative of emotional trauma and Post-Traumatic Stress Disorder [PTSD].

   When under mental distress especially from the abuses by the father on [the children] which they described in detail, it is common for them to both experience physical side effects inclusive of [the younger child’s] symptoms of pain stress induced Alopecia, [the older child’s] symptoms of vertigo and increased tinnitus, sleep disturbance and pain which in my opinion are causally connected physical side effects. The psychological damage, harm and mental distress of [the children] as a result of their father’s breach of his duty of care on them and his abuse on them is substantial including this has had an impact on their schooling, health and mental well-being…

8. The mother submits that even when the Court is unable to make positive findings about the father’s alleged abuse of the children on an interim basis the Court still be satisfied that the father’s actions which she submits constitutes family violence, pose risk to the children’s health, safety and wellbeing.

1. The father’s denial of the mother’s allegations, as far as I understand, it extends to the actions which the mother asserts constitutes family violence and I am unable to make findings about family violence on an interim basis. Nonetheless, I do attach some weight to the treating psychologist’s report particularly where the complaints made by the children to the psychologist are consistent with what the older child said to the family consultant.

2. The father’s connection to the coastal towns is that he has holidayed in the area since childhood and he says that his partner also has family connections in the area.

3. The father submits that the terms of the injunctive orders remain overly broad and that a number of the locations the mother seeks to include in the injunction are not capable of being made under section 68B of the Act. He also submits that the mother’s general assertion that she works in the area of the two coastal towns does not entitle her to recourse under s 68B of the Act in the terms she seeks.

4. The ICL submits that there is sufficient evidence in the material filed by both parties for the Court to conclude even on an interim basis where the Court cannot make findings about factual issues in dispute that the relationship between the parties and between the children and the father is extremely hostile and fragile.  

5. The ICL submits that given the serious nature of the allegations and the strong views of the child as expressed to the family consultant and evidence of the children’s distress, to reduce the potential for further conflict, the Court may find that injunctive orders in relation to specified areas in the coastal towns would be appropriate on an interim basis. However the ICL did not wish to be heard on the scope of the order sought by the mother.

6. Section 68B of the Act permits the Court to make an injunction for the personal protection of a child or the parent of a child, to prevent a person from entering or remaining in a specified area that contains a place or residence, employment or education of a child or a parent of the child.

7. The existing injunctive orders made 19 September 2019 provide:

   That pursuant to s 68B of the Family Law Act 1975 and on a without admissions basis the father is restrained from:

   3.1.Attending at or being within 500 metres of the home address of the mother and children … save that the father may travel along [a specified road] without being in breach of this Order.

   3.2.Contacting (or attempting to contact) or approaching [the children] at their respective schools…

   3.3.Attending on any school event, ceremony, or activity that [the older child] or [the younger child] are involved at their respective schools in the absence of an express invitation from [the older child] or [the younger child] or the mother (noting that [the younger child] will be completing Year 6 at [name of school] at the end of 2019).

   3.4.Approaching the mother or [the children]

   3.5.Attending [the schools of the children]

8. In my view these injunctions in relation to the father’s conduct made in September 2019 provide sufficient protection for the mother and children even if her allegations about the father’s conduct prove correct.  On the mother’s own evidence there has been a decrease in the father’s harassing behaviour since these injunctions were made and the only allegation she makes subsequent to this event about the father’s conduct relates to her contention that in late January 2020 the father stalked and followed she and the children through some suburbs near their home in Sydney.  The only evidence the mother has supporting this allegation are two photographs of a car in the distance which appear to have been taken through a windscreen which are time stamped a few minutes apart. The mother contends that the car depicted is the father’s.  As I understand it the father denies stalking or harassing the mother on any occasion.  Further, as contended on his behalf even this single recent alleged event since the September 2019 orders is said to have occurred in Sydney and there are no allegations relating to his alleged conduct in the area of the coastal towns since around January 2017. 

9. In these circumstances, where there are already orders in place restraining the father in respect of conduct which he in any event denies I am not satisfied that it is appropriate to extend any further protection to the mother and children as she seeks.

Payment of medical costs, school fees and mortgage payments

1. The mother seeks orders that the father pay as they fall due:

   a)All of the monthly payments secured against the home where she and children currently reside;

   b)All of the children’s school fees; and

   c)One half of the children’s medical costs and all costs associated with the children’s medicals.

2. So far as the monthly mortgage repayments are concerned there is no dispute between the parties that the final property orders made in April 2016 provide that the payment of this mortgage is the mother’s responsibility.  

3. At the hearing it was the mother’s contention that the payment of the mortgage could be considered as a parenting order. She conceded however that she could cite no authority for treating mortgage repayments in this manner.

4. In her written submissions the mother also contended that an alternate way of considering this proposed order is as spouse maintenance. She did not pursue this matter at hearing and in particular make any submissions as to why leave ought to be granted for her to commence such an application out of time where it has been over 12 months since the parties’ divorce took effect. Counsel for the father further contended that even in the event that the mother was granted leave to make an application for spouse maintenance out of time, it would not be proper to make such an order where the mother has not addressed any of the relevant considerations set out in s 75(2) of the Act.

5. In the forgoing circumstances there is no proper basis upon which the mother’s application for the order in relation to mortgage payments may be considered.

6. In relation to the application that the father pay all of the children’s school fees and half of the children’s medical costs (expressed in very broad terms) it is the mother’s case that orders of this nature fall within the definition of a parenting order.

7. Section 64B of the Act provides that a parenting order may deal with maintenance of a child or any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

8. The mother contends that the orders she seeks in relation to payment of school fees and medical expenses may fall within the definition of “maintenance of a child” or that these are aspects of care, welfare or development of the children or an aspect of parental responsibility.

9. It is the father’s contention that the Child Support (Assessment) Act1989 (Cth) (“the Child Support Act”) applies and that section 66E of the Act precludes the making of an order for child maintenance where an application for administrative assessment of child support could be made.

10. The objects of the Child Support Act are set out in s 4 of the Child Support Act, and of particular relevance are sections (1) and (2)(c) which provide:

    (1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.

    (2) Particular objects of this Act include ensuring:

    ...

    (c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings...

11. As was observed by Riethmuller FM (as he then was) in Bagala & Bagala (2009) FLC 98-043:

    Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised.

12. The mother contends that the Child Support Agency “deemed” her “exempt” from the requirements of the Child Support Act and scheme. She submitted that a child support assessment must have been automatically “invoked” as the father had received a government benefit (identified as a Newstart Allowance in his most recent Financial Statement). She argues that as she has not received such an assessment, the Child Support Act does not apply. The mother provides no evidence and more importantly was unable to refer to any relevant legislative provisions to support these contentions.

13. I am of the view that the payment of school fees and medical expenses being the payment of money from one parent to another can only be characterised as child support and I am not satisfied on the evidence before me that the Child Support Act does not apply as is contended by the mother. In accordance with the objects of the child support legislation, the mother must first exhaust all administrative options within the child support framework before seeking recourse to the Court.

14. For the foregoing reasons the mother’s application for interim orders is dismissed.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 June 2020.

Associate: 

Date:  10 June 2020