Tanner & Tanner
[2023] FedCFamC2F 1223
•12 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tanner & Tanner [2023] FedCFamC2F 1223
File number(s): BRC 10918 of 2023 Judgment of: JUDGE WILLIS AM Date of judgment: 12 September 2023 Catchwords: FAMILY LAW – PARENTING – interim proceedings – where father has withheld children – where mother seeks urgent interim recovery Order – parties consent to children being returned to mother – where father continues to seek to reopen previous proceedings and change the final Orders in place – matter set down for Rice & Asplund hearing – where discretionary section 102NA Order applied to final trial between the parties – mother seeks section 102NA order for Rice & Asplund hearing – where cross examination will be required at the Rice & Asplund hearing – discretionary section 102NA Order made Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 12 September 2023 Place: Brisbane Solicitor for the Applicant: Ms Kent, BrisbaneLine Lawyers Counsel for the Respondent: Mr Duplock Solicitor for the Respondent: ABA Lawyers Solicitor for the Independent Children's Lawyer: Ms Bush, LifeLaw Solutions ORDERS
BRC 10918 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TANNER
Applicant
AND: MR TANNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
12 SEPTEMBER 2023
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Care arrangements
1.The children X born in 2014, Y born in 2016 and Z born in 2017 (“the children”) be returned to the care of the mother by 4.00pm today, 12 September 2023, by way of the father delivering up the children to the home of the mother.
2.The children remain in the care of the mother from 4.00pm today until Thursday next week, 21 September 2023, after which they will spend 5 nights with the father as part of the school holiday period, then the balance of the school holidays with the mother, and thereafter the time provided for in the Order of 3 November 2022 will continue.
Restraints
3.The parents be restrained and an injunction granted from discussing the outcome of the court proceedings, their attitude towards the other parent or any other matter concerning these proceedings save as to indicate to the decision was made by someone other than the parents.
4.Each parent is restrained and an injunction is granted from taking the children to a counsellor or other medical professional for (psychological) support, assessment and/or counselling without the prior written consent of the other parent, and the Independent Children’s Lawyer, or by order of the Court.
5.In the event that the children are taken to a counsellor or medical professional by a parent, with consent in writing of the other parent, a copy of these orders is to be provided by each parent to the medical professional.
Procedural leave
6.The Independent Children’s Lawyer has leave to view, and copy, the Court file BRC 13099 of 2018.
7.The Independent Children’s Lawyer have leave to issue more than five (5) subpoena.
8.The Independent Children’s Lawyer is requested to issue a subpoena Ms B, and Dr C of D Medical Centre.
Documents to be filed
9.The father is to file and serve an affidavit within 14 days deposing as to, but not limited to, the following:
(a)His current mental health diagnosis and by whom same was made;
(b)His current treatment and monitoring regime and medication prescription including the name of each medical practitioner and counsellor or other allied health practitioner (“medical practitioner”) consulted and their speciality;
(c)The date(s) of his attendance with each medical practitioner since 3 November 2022 and the date on which he provided the authorisation to the medical practitioner pursuant to the Orders of 3 November 2022 for the release of information per Order 23 therein;
(d)The date on which the father provided a copy of the Orders dated 3 November 2022 to each of his then and current treatment providers;
(e)Any relapse plan the father has formulated following from the recommendations of Dr E and annex a copy of same identifying with whom it was formulated;
(f)The stress management plan that was formulated, if formulated, pursuant to the recommendations of Dr E and annex a copy of same identifying with whom it was formulated;
(g)Details as to the father’s alcohol consumption including but not limited to the number of days in the week when the father consumes alcohol, the nature of alcohol consumed, the volume of alcohol consumed;
(h)The full name of his fiancée “Ms F” together with her date of birth, where she will be travelling from and when, when he met her, how he met her, whether they have spent any in person face to face time together and if so when and where same occurred, when and where it is intended that they be married and where it is intended that the father and Ms F live, whether Ms F has any children and if so the name and date of birth of those children and the care arrangements for those children;
(i)The date on which the father first made contact with Dr H together with how the appointment was funded, whether there was a referral obtained from the children’s GP, an explanation as to why the mother was not advised of this appointment, the date of all contact whether by telephone, email, in person or other means between the father and Dr H with a copy of all written communication between them, to be annexed;
(j)The current Child Support Assessment, and any change that has occurred in the last 12 months and annex a copy of same;
(k)Purchase contract and other documentation evidencing the purchase of property at Town G, when that contract was entered into, when it will settle and the father’s intention with that property together with details of the distance from the mother’s residence, what facilities are on the property e.g. any form of accommodation, amenities;
(l)Details of the engagement the father has or has had with J Centre including but not limited to whether that contact continues, if so how often and the nature of same and the purpose of engagement with the J Centre, any courses or other studies the father has undertaken with the centre including the name of those courses, the cost of same, how he has applied same in addressing the conflict before the court;
(m)Whether the father has completed graduate studies. He informed Dr E he was studying at the time the interviews were undertaken in late 2021 and if so, provide a copy of the certificate, or if not whether he continues those studies, when he expects to finish the studies or if he has discontinued the studies, when he discontinued and why;
(n)If he has completed a CDT test or any other test evidences alcohol use at any time in the last 12 months, a copy of same together with certificate of completion for any parenting and/or parenting related course completed by him in the last 5 years; and
(o)Information and details concerning his continued compliance or non-compliance with Order 22 of the Orders made 3 November 2022.
10.Within 7 days of the date of this order the father return to the Independent Children’s Lawyer the completed Questionnaire and signed authorities as sent to the father by the Independent Children’s Lawyer’s office on 6 September 2023.
11.The mother file and serve an affidavit within 14 days deposing as to, but not limited to, the following:
(a)Full name and date of birth of each person living in the mother’s home and the purpose of such living arrangement e.g. usual place or residence or student if not already provided as at the date of this document;
(b)Whether the mother is working and if so, in what capacity and in what role;
(c)Details of any current (mental) health diagnosis;
(d)Details of any medication currently prescribed for and taken by the mother;
(e)Description of the mother’s residence e.g. number of bedrooms, sleeping arrangements, whether same is rented or owned;
(f)If a parenting course of any nature has been undertaken, the date of same and annex a certificate of completion; and
(g)Given the mother’s application for make-up time, how she would propose such time would occur.
12.Within fourteen (14) days of the date of these orders, each party file and serve a completed Financial Statement setting out their circumstances.
AND THE COURT ORDERS UNTIL FURTHER ORDER:
Schooling
13.Each party is to all acts and things to ensure that the children forthwith return to attending their regular school in person, as was the case when the Consent Orders of 3 November 2022 were agreed to.
Orders in force
14.The terms of the Orders of 3 November 2022 are to be observed by each party, in particular the father, until such time as there is a decision made by the Court that those Orders are no longer current or to be varied.
Additional documents to be filed
15.The mother is to file and serve a Reply to the father’s application to reopen and change the Orders of 3 November 2022 as set out in his Amended Response filed 4 September 2023.
16.The father is to cause an affidavit to be filed relating to the evidence given by Dr H, within 14 days NOTING that the father has attached to his affidavit a report from Dr H.
Costs
17.The costs associated with the urgent interlocutory ex parte recovery application as set out in the mother’s Initiating Application (which did not seek an order to discharge or vary the final Orders in place of 3 November 2022) are reserved.
Listing
18.The matter is listed for a Rice & Asplund contested hearing on 25 October 2023 at which point cross-examination is anticipated.
Cross-examination ban
19.The requirements of s.102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings, preventing personal cross-examination of each party by either party and each party should approach Legal Aid with a copy of this Order to secure legal representation at the final hearing.
20.The Court certifies for Counsel at the contested hearing.
NOTATION:
A.That the Court has determined that the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.That affected unrepresented parties should forthwith apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.That further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.That given that s102NA applies, if a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
E.That the solicitors on the record are to keep chambers informed as to the progress of the parties’ s102NA applications.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Revised from transcriptJUDGE WILLIS AM:
This is an application under section 102NA in the matter that is before me, which is a matter that has previously been before the Court for a Final hearing in November 2022.
In that hearing, the father asked for a 102NA order and I used my discretion to make the order, because I was very troubled about the prospects of the father cross-examining the mother given quite horrific events that have caused him to have post-traumatic stress disorder, and there were allegations by him of violence by the mother against him.
The father said in his affidavits that he has been hit and had things thrown at him and various other allegations. It is all set out in his previous material. The father accuses the mother of being quite a violent person in relation to the children and also alleges that her discipline has been very heavy-handed; that she has hit K with an object; that she has locked children in cars; that she is overbearing and intimidating. The thread of his allegations at times is that the mother is making his depression and PTSD worse and that she does not understand those things and tells him to, “Just get a grip and get over it,” and alleges that she has been very unsympathetic to the traumatic events which occurred to the father in the armed forces. So all of those issues and dynamics are still the case. The father has had a history in the armed forces and experiences there that have caused him significant trauma which is set out in the material, but which I will not repeat as I do not wish to exacerbate the distress for the father.
On the flipside of that, the mother says that the father has been very overbearing and controlling. The mother has set out in her material for this trial all of the incidents about her having to hide her car key because she was told by the father that he wanted to have the keys and she could not go places without his agreement. The descriptions by the mother in her affidavit are of a very conflicted and stressful relationship where the mother is walking on eggshells because of the father’s depression and Post Traumatic Stress Disorder. That context has been very much the background of the family life between the parties and referred to in the mothers’ applications. The father’s mental health has been a significant factor in this litigation and single expert evidence has been obtained and relied upon when the Consent Orders that were agreed to last November were finalised. The Orders provide that the father’s time is subject to him continuing his treatment with his mental health practitioners.
In all of the circumstances, I am prepared to, once again, make an order under section 102NA because of the highly emotional and ongoing conflict (at a very high level) between these parties. Outside the courtroom, there seems to be ongoing acrimony and allegations being made by each party. The father was unsuccessful in having his application for a domestic violence order succeed against the mother, but the Magistrate noted the ongoing conflict and acrimony albeit she commented on the father’s tendency to overreact and over-complain about incidents. This may go to his fragility. The most he could rely on, really, was that the mother called him an idiot and, as the Magistrate explained, people say all sorts of things under the pressure of day-to-day living and it does not represent an act of domestic violence. The father has made a range of other claims in this Court about violence perpetrated upon him, that it does not seem he raised back when he was seeking that domestic violence order.
In any event, I am well versed in the dynamics between the parties in this matter and I am satisfied that it is appropriate to exercise my discretion to impose a cross examination ban. Each party is essentially fearful of the other. I am satisfied, because there is going to be cross-examination in the forthcoming a Rice & Asplund application filed by the father (because he says there are allegations now regarding the mother abusing the children). I am going to make an order under section 102NA. Each party should take this to Legal Aid without delay.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Willis AM. Associate:
Dated: 12 September 2023
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