Teitzel & Olman & Anor

[2019] FCCA 718

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEITZEL & OLMAN & ANOR [2019] FCCA 718

Catchwords:
FAMILY LAW – Parenting – application in a case – application abridged – respondent had notice – leave to proceed undefended – application to suspend time spent orders – respondent liberty to apply to set aside.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.6.14, 6.15

Family Law Act 1975 (Cth), s.69ZN

Cases cited:

Olman & Teitzel (2018) FCCA 2006
Jarrah & Fadel [2014] FamCAFC 14
Eyton & Eyton (2013) FamCA 657
Goode & Goode [2006] FamCAFC 1346
Banks & Banks [2015] FamCAFC 36

Applicant: MS TEITZEL

First Respondent: MR OLMAN

Second Respondent MS M

File Number: MLC 547 of 2017

Judgment of: Judge O'Sullivan

Hearing date: 6 March 2019

Date of Last Submission: 6 March 2019

Delivered at: Melbourne

Delivered on: 6 March 2019

REPRESENTATION

Counsel for the Applicant: Mr Harrison

Solicitors for the Applicant: Westminster Lawyers

First Respondent: No appearance

Second Respondent: No appearance

Solicitor for the Independent Children’s Lawyer: Ms Trapski

ORDERS

1. Pursuant to Rules 6.14 and 6.15 of the Federal Circuit Court Rules 2001 (“the Rules”) personal service on the respondent father be dispensed with and sufficient service of the application in a case filed 1 March 2019 be deemed to have been effected by email, and service of the second respondent be dispensed with pursuant to Rule 1.06 of the Rules.

2. The applicant mother and the Independent Children’s Lawyer have leave to proceed undefended with the application in a case filed 1 March 2019 pursuant to Rule 13.03A(2)(a)(b)(ii)(vi), 13.03B(2) and 13.03C(1)(e) of the Rules.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The time the children, X born in 2009 and Y born in 2013 (“the children”) spend with the respondent father pursuant to orders 11, 12 and 13 made 7 April 2017 are hereby suspended.

2. The respondent father’s time with the children be reserved.

3. The applicant mother and the Independent Children’s Lawyer serve the respondent father with a copy of these orders within 7 days.

4. Pursuant to Rule 16.05(2) of the Rules, the respondent father may seek leave to set aside these orders upon him filing an application and affidavit setting out his failure to file a response to the application in a case and attend Court, and why these orders are not in the children’s best interests, 7 days thereafter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 547 of 2017

MS TEITZEL

Applicant

And

MR OLMAN

First Respondent

MS M

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before the Court is an application in a case filed on 1 March 2019 by Ms Teitzel (“the mother”) naming Mr Olman (“the father”) as the respondent. The application in a case was accompanied by an affidavit from the mother sworn on 1 March 2019 and the matter was abridged to the Court’s duty list today, 6 March 2019.

2. Mr Harrison of Counsel appears on behalf of the mother.  There has been no appearance by or on behalf of the father. Ms Trapski, Solicitor, has appeared as Independent Children’s Lawyer.

Background

1. The background to these proceedings is detailed. The factual background to the parties’ relationship is conveniently summarised in a decision of, as her Honour then was, Judge Williams, in Olman v Teitzel (2018) FCCA 2006, at paragraphs 3 to 8 as follows:

   “3.The father was born in Country L and the mother was born in Australia.

   4.  The father and mother commenced a relationship in 2009 in Country B. At that time the father was working as a professional and the mother was working as a professional for Employer C. In 2011 the mother returned to Australia and in 2011 the father moved to Australia and the parties commenced cohabitation.

   5.  They separated under the one roof in September 2016 and physical separation occurred on 5 November 2016, when the mother vacated the family home.

   6.  There is one child of the relationship X born in 2013. Additionally, the father has another child from a previous relationship, X born in 2009.

   7.  X’s biological mother is Ms M who lives in Country D. In 2013, X arrived in Australia to live with the mother and the father. Since arriving in Australia, X has not spent any time with his biological mother. The mother considers X to be her child. The father disputes the extent of the relationship between the mother and X.

   8.  The current substantive proceedings concern the living and spend time with arrangements for both children. Both parents seek that the children live primarily in their care.”

Recent orders

1. The substantive proceedings between the mother and the father have been on foot for some time and were most recently before Judge Williams on 4 February 2019, when her Honour made the following orders:

   “1.All extant applications be adjourned to Federal Circuit Court of Australia on 17 June 2019 at 10.00am for Final Hearing, with an estimated hearing time of three (3) days (“the Final Hearing”).

   2.On or before 30 April 2019 the father and Ms M file and serve an Amended Response and any affidavit he seeks to rely on.

   3.On or before 30 May 2019 the mother file and serve any affidavit in Response.

   4.Both parties file and serve an Outline of Case on or before 72 hours prior to trial.

   5.The Father pay the costs of this day the costs of the Independent Children’s Lawyer fixed at $2,199 and the costs of the mother fixed at $4,053 with the time for payment to be determined at trial.

   6.The father attend in person on the adjourned date. 

   7.The Independent Children’s Lawyer serve a sealed copy of orders made this day on Ms M by email and by posting the same to her post box address.

   THE COURT NOTES THAT:

   A.In the event the father fails to comply with orders made this day the mother will apply for the matter to proceed undefended.”

2. As those orders make clear, her Honour fixed the substantive proceedings for a trial on 17 June 2019.

Mother’s application in a case

1. The application in a case, filed by the mother on 1 March 2019, sought the following orders:

   “1.That all necessary times be abridged and this Application heard on an urgent basis.

   2.That until further Order:

   (a)    The orders made 7 April 2017 be and are hereby   suspended.

   (b)    The children, X born in 2009 and Y born in 2013 (the children) live with the Mother.

   (c)     The Father’s time with the children be reserved.

   3.Such further or other Orders as this Honourable Court deems appropriate.”

2. The application in a case was supported by an affidavit of the mother sworn on 1 March 2019, the contents of are as follows:

   “…1.     I am the Applicant Mother.

   2.I make this Affidavit in support of the Orders sought in my Application in a Case filed contemporaneously.

   Background

   3.I am 37 years of age having been born in 1981 in Australia. I currently reside in the Suburb E area. I have not disclosed my residential address to the Respondent, Mr Olman as I am fearful of my safety and the safety of the children if he knew where we live.

   4.I am the primary carer of the children, X born in 2009 and Y born in 2013 (the children). I have been the primary carer since Y was born and X arrived in Australia in 2013.  The children have been in my full time care without spending time with Mr Olman since 30 September 2018.

   5.X is Mr Olman’s biological child from a previous relationship. Until 26 October 2013, X resided with his biological Mother, Ms M in Country D. In 2013, upon request from Mr Olman and Ms M, I agreed to sponsor X to live in Australia. He arrived in Australia in 2013 when I was 32 weeks pregnant with Y. From this time, I have played an active role in X’s life as his Mother and he has not seen or spent time with Ms M since 2013. He has not spent time with Mr Olman since 30 September 2018. I consider X to be my child and I care and love him so. I receive no child support payments for either child.

   6.Mr Olman is 46 years of age having been born in 1972 in Country L. He moved to Australia in 2011 and has remained living here since this date. As far as I am aware, Mr Olman is not an Australian citizen but is a permanent resident. According to Mr Olman’s Affidavit filed in these proceedings on 30 January 2019, he currently resides in an isolated town in the Northern Territory and is employed as a professional with the Employer F.

   7.These proceedings were initiated by me on 20 January 2017. They have been lengthy, arduous and expensive. For the majority of the proceedings, Mr Olman has been self-represented. He remains self-represented today. The Honourable Judge Williams detailed the procedural history of this matter at paragraphs 9 to 24 of Her judgment delivered on 25 July 2018.

   8.Throughout these proceedings Mr Olman has been deliberately obstructive and vexatious. He has made applications for numerous adjournments, filed constant appeals, including to the Family Court and High Court of Australia and threatened to continue to appeal decisions made by this Honourable Court. In a recent letter received this week on 26 February 2019, Mr Olman states:

   “…Finally, just to let you know I will be lodging an appeal against your client to the Full Court of the Family Court, and possibly, to the High Court if the latter fails. The errors I have identified are several but I will focus upon:

   a.  Bias

   b.  Procedural unfairness

   c.  Failure to apply the law per s 60CC”

   9.This matter was listed for a Final Hearing before the Honourable Judge Williams on 4 February 2019 however due to Mr Olman’s last minute application to adjourn the trial, citing a lack of time to prepare documents, the Final Hearing has been adjourned to 17 June 2019. I filed an Affidavit on 7 December 2018 in anticipation of the Final Hearing which I also seek to rely in respect of this Application.

   Urgency

   10.I seek an Order for all necessary times to be abridged and for my Application in a Case to be heard on an urgent basis in circumstances where I hold genuine fears that the children will be taken by Mr Olman and not returned to me. I refer to paragraphs 22-26 below wherein I set out the basis of my concerns in detail.

   Parenting arrangements

   11.On 1 October 2018, Mr Olman wrote a letter to my solicitor advising he was moving to the Northern Territory to live and work. Since his relocation Mr Olman has not spent time with the children (save for 10minutes in December) and he has only spoken to the children on two occasions – 28 October 2018 and 2 December 2018. I have offered Mr Olman to telephone the children twice per week on Tuesdays and Sundays between 7.30pm and 8.30pm however he has chosen not to call since 2 December 2018.

   12.Interim parenting Orders were made on 7 April 2017 by consent (the April Orders). The April Orders provide inter alia for the children to live with me and spend time with Mr Olman each alternate weekend from 2.30pm for Y and 3.30pm for X until 5.00pm Sunday and each Tuesday from 2.30pm for Y and 3.30pm for X until 7.00pm. These Orders were made when Y was at day care. He is now at school.

   13.Despite Mr Olman’s relocation, the April Orders remain in full force and effect. Until now, I have not filed an Application in a Case seeking the suspension of the April Orders in circumstances where I have spent in excess of $100,000 on legal fees and the number of appearances before the Federal Circuit Court, the Court of Appeal and Magistrates Court have been excessive.

   14.I am now forced to bring this urgent Application in circumstances where the following sequence of events has occurred over the past few days. On 26 February 2019 Mr Olman wrote to my solicitor. The letter states inter alia:

   “I am writing to advise I will be in Melbourne this weekend. I would like to see the children on Saturday 2^nd April and Sunday 3^rd April 2019. Please advise your client to avail the children on Saturday at 10am at the Suburb E Oval. I will drop children off at their school on Monday 4 April 2019…”

   Annexed hereto and marked with the letters T-01 is a true and correct copy of the letter dated 26 February 2019. 

   15.On 28 February 2019, I instructed my solicitor to respond to Mr Olman. Part of that letter read: “…We note you will be visiting Melbourne this weekend, being 2 and 3 March 2019 although your letter refers to 2 and 3 April 2019. We confirm you have sought to have the children in your care for the entirety of the weekend.

   We reiterate the contents of our letter to you of 4 December 2018 and the email from the Independent Children’s Lawyer of 6 December 2018. The circumstances of this case have not altered since this correspondence.

   The Family Report recommends consideration be given to the children spending supervised time with you and that time be ‘predictable’ and ‘planned’.

   Our client is of the view that it is not in the children’s best interests to spend unsupervised, overnight time with you particularly given you have not spent any meaningful time with the children since September 2018, some 5 months ago nor have you telephoned the children since 2 December 2018….”

   Annexed hereto and marked with the letters T-02 is a true and correct copy of the letter dated 28 February 2019.

   16.On 28 February 2019, Mr Olman responded inter alia as follows:

   “1.  The Family Report has not been admitted into evidence and has not been tested to be used as evidence in the interim period. A decision has not been made by the judicial officer regarding the family report or the position of the ICL as such, your client cannot cite it as a reason to deny my spending time with the children.

   2.    Your client’s view is not an order of the Court and therefore cannot form interim parenting arrangements. Your client is a party to the proceeding not a decision maker.

   3.    There is an order made 7 April 2017 by Court. Allegedly by Consent although I did not sign the Order, that Order is still in force, and has not been discharged.

   4.    If your client wants new parenting orders in relation to her views she should apply to Court to discharge current Orders. On 4 February 2019 your client requested that Orders be discharged however, her Honour refused. Technically, that Order is still in force and has to be respected…

   …6.Noting that:

   a.There is an Order in place allegedly made by Consent but which I did not Consent to;

   b.  that that Order has not been amended or discharged and;

   c.that that your client has severally refused me to spend time or communicate with the children, I will be challenging that Order.

   7.    Finally, note that from today onwards without notice I will attend to school and pick up children per existing Order…” [emphasis added]

   Annexed hereto and marked with the letters T-03 is a true and correct copy of the letter dated 28 February 2019.

   17.On 28 February 2019, the ICL, Ms Alison Trapski of Trapski Family Law sent an email to Mr Olman in response to his correspondence. Ms Trapski’s email read:

   “Dear Mr Olman,

   Whilst I understand that you do not accept the recommendations contained in the Family Report, until such time as that evidence has the opportunity to be challenged by you, I do not support you having time with the children unless it is supervised in a Children’s Contact Centre.  It is not appropriate for you to collect the children from school without notice, particularly given you have not spent time with the children for some time.

   In the event that the Mother makes any urgent application to the Court for the current “spend time” orders to be suspended, I would support that application to the presiding judicial officer.”

   Annexed hereto and marked with the letters T-04 is a true and correct copy of the email dated 28 February 2019.

   18.Twenty minutes after the ICL’s email above, Mr Olman responded as follows:

   “Dear Ms Trapski,

   1.  Your biased position in this case is already known. I am not surprised by your taking of sides.

   2.  You have not made urgent ex parte orders to suspend current parenting orders even when the Mother abducted children. You did not make any application on 4 February 2019 to suspend current parenting orders. Yet you want the Mother's abduction of children to continue.

   3.  You want to put the fault of not spending time with the children on me, not the Mother. I think your position is untenable and is not in the children's best interests. 

   4.  I find your engagement in this process totally offhanded and unhelpful to the children's situation yet you continue to draw government funding for no work done. You did nothing to alleviate X's situation when he was experiencing significant psychological trauma when I emailed you in January 2018. 

   5.  I have read your case summary which leaves a lot to be desired; they do not even fit with the law. You want interim facts to fit into your legal arguments at trial in favour of the Applicant.

   6.  I think your position is totally absurd and your title of Family Law Specialist really unworthy of praise. 

   7.  Again per my position stated in my letter I will pick up children from school. If the Mother makes an interim application I will defend it based on current parenting orders. If she wants new orders she should apply to Court.”

   19.As a result of the above correspondence, in particular paragraph 7 of Mr Olman’s letter dated 28 February 2019, I have decided to withhold the children from attending school today, 1 March 2019, in order to limit the possibility of Mr Olman taking them. Given the circumstances I feel I am acting in the best interests of the children.

   20.I intend to keep the children away from school until such time as this Court makes further Orders regarding their care. There is a real and undeniable risk to the children that they will be taken by Mr Olman if they are sent to school whilst the April Orders are in place and Mr Olman is in Victoria. This is not in their interests and is extremely disruptive to their routine. Further, the children’s school has also expressed concerns regarding the ambiguity of the situation.

   21.Mr Olman has not advised me or my solicitor how long he intends to be in Melbourne on this occasion. I do not know where he is staying or his mode of transport. I am fearful of my safety and that of the children whilst I know he is in the State. 

   Serious concerns of abduction

   22.I have long held a fear that Mr Olman will take the children interstate or overseas without my knowledge or consent. Those fears continue to increase as Mr Olman’ correspondence over the past weeks and months continue to escalate in emotion and irrational thought.

   23.Both children are presently on the Airport Watch List however I am concerned Mr Olman may still have an ability to remove them from Australia. In any event, he asserts he lives in a remote, isolated community in the Northern Territory. If Mr Olman was to take the children and not return them to me, I would not know where to begin looking for them.

   24.In December 2016 after Mr Olman and I had only just physically separated, Mr Olman failed to return X to me despite an agreement to do so. I did not know where Mr Olman or X were and I had serious concerns for X’s safety. Victoria Police and the Department of Health & Human Services were involved in trying to locate Mr Olman and X. By 20 January 2017 I still did not know where they were and as a result, I filed an urgent application in this Court. I later learned Mr Olman had taken X to Town G, near Town H. I have not been apprised of the details of their living arrangements in those first few weeks however I believe Mr Olman and X were sleeping in a tent at the Town G camp ground. I am concerned Mr Olman may take the children again given his past behaviour.

   25.On 1 November 2018 Mr Olman wrote a letter to my solicitor which in part stated: 

   “I am Country L person first and foremost, X is Country D first and foremost and Y is Australian. We all have rights to travel and visit places. There is no law that debars me or the kids from leaving Melbourne. The State has no right to limit the movement of people across States or national borders without any reason. The State does not grant rights which are inalienable; the State promotes human rights as stipulated in international instruments and Charter…”

   Annexed hereto and marked with the letters T-05 is a true and correct copy of this letter dated 1 November 2018.

   This letter caused me great distress and angst and heightened my fear that Mr Olman has total disregard for the law and would not hesitate to take the children wherever he pleases if he was to have unsupervised time with them.

   26.Mr Olman’s letter of 26 February 2019, which can be found at Annexure T-01 states that he has recently:

   (a)    Written to the Country D Consulate and Attorney General for consular assistance for X.

   (b)    Requested the Embassy/Attorney General to lodge protests with the Attorney General of Australia in its “…mishandling of the case and failure to meet its international obligations as member of the International Community…”

   (c)     Written to Mr J of Country L to lodge a protest against the Commonwealth of Australia with the United Nations regarding failure to meet its obligations as a member of the international community.

   27.As recently as 30 January 2019 in his Affidavit, Mr Olman seeks for the children to live with him in the Northern Territory. This in itself shows a serious lack of insight and understanding of the children’s needs and best interests.

   Family Report

   28.In December 2018 Ms K prepared a Family Report in this matter. Mr Olman decided not to participate in the family report interviews despite traveling to Melbourne to partake. On the morning of the interviews on 10 December 2018 Mr Olman wrote to Ms K and said that one of the reasons he was not participating was because I had “kidnapped the children and refused him to see them”. 

   29.At approximately 1pm on the day of the interviews with Ms K, it was clear that Mr Olman was not going to attend so she informed the children and me that the process had concluded and said we were able to leave. I left the building with the children and sought to find my parents who had accompanied me to Ms K’s office so that they could care for the children during my interview.

   30.As I was walking toward the carpark Mr Olman appeared out of nowhere and came running up to the children with his arms wide open. X and Y started moving toward him and Mr Olman wrapped them in an embrace. I was terrified at this point as we were in an isolated area and there was no one else around and Mr Olman had appeared spontaneously and I feared he may have been waiting until we left the building to approach the children. I was concerned that Mr Olman would take the children and put them in his car. Given Mr Olman is a very tall and imposing build, I would have been able to do very litte to stop him.

   31.I said to Mr Olman that if he wanted to see the children it would need to be inside Ms K’s office. I managed to shuffle the children back into the building and see Ms K who expressed serious concern about the situation. I was visibly shaken by the event. Mr Olman spent time with the children in the presence of Ms K for approximately 10 minutes. He refused to participate in an individual interview.

   32.In her report, Ms K comments inter alia that:

   “(a)…it would appear that Y and X experience stability in their current living arrangements, this being important and of benefit to them given the challenging parental post separation period…”

   “(b)…It is considered that Y and X would benefit in stability and predictability in their living arrangements and in their communication, time and relationship with Mr Olman.”

   “(c)There have been concerns expressed that the children have been exposed to continuing parental conflict and openly expressed critical views of the mother by Mr Olman. This is clearly not in their best interests and likely to cause them further distress and confusion. Given the situation consideration may need to be given to the parties engaging in a supervised contact service…in order to manage both time of changeovers and to ensure that the children are safe and protected from described and alleged paternal behaviours and responses that have the potential to be emotionally damaging to them and undermining the parental relationship they have with Ms Teitzel.”

   33.Ms K’s report recommends inter alia that:

   “(a)  Y and X remain in the primary maternal care at this time.

   (b)That consideration be given to predictable and planned arrangements providing the opportunity for the children to communicate and spend time with their father. Consideration to be given to the engagement of the parties in a nominated Children’s Contact Centre or with a private contact service to establish safe and supported future arrangements.”

   34.In light of the above, I seek urgent Orders as set out in my Application in a Case filed contemporaneously.”

1. The mother’s affidavit sets out the grounds and the need for (and provides the requisite explanation around the exigent circumstances that require) the Court to urgently consider the need to make the orders sought in the application in a case.

Hearing of the mother’s application in a case

1. Today I have been provided 2 emails by Mr Harrison of Counsel which were marked as Exhibit A1.  They record that the father was served with the mother’s application in a case, the material filed in support and the father has had notice that the matter was listed in Court today as early as 1 March 2019.

2. The email trail records that not only have the mother’s solicitors repeatedly put the father on notice of the mother’s application in a case, and that the matter was in Court today, but have, over the course of 1 March 2019 and 5 March 2019, and, indeed, right up and until 0937 hours this day, been in email contact with the father.

3. The email correspondence also put the other respondent to the substantive proceedings on notice, of the mother’s application in a case.  However, the orders sought by the mother in the application in a case only impact on the father insofar as they are only sought an order reserving his time with the children.

4. Today the Court was told that on 4 February 2019, and on an application by the father filed on 1 February 2019, what had been the date that had previously been fixed for the trial of substantive proceedings, was adjourned to the date later this year by Judge Williams.

5. Exhibit A1 makes clear that the father has had notice of the mother’s application in a case in a timely fashion, that the father has had notice that the matter is in Court today, that the father has had an opportunity to make sufficient arrangements to be able to attend Court, either in person or electronically.  As recently as 4 March 2019 the father having had notice of the mother’s application in a case has been able to file a notice of appeal in the Family Court of Australia on 4 March 2019 seeking to appeal the orders made by Judge Williams on 4 February 2019.  The Court has been told today that whilst the mother’s solicitors and the Independent Children’s Lawyer were aware that the father had indicated he had or would be doing so, they had yet to be properly served with that, and weren’t entirely sure whether the father had actually filed that notice of appeal.

6. Given that Exhibit A1 makes clear that the father has had notice of the mother’s application in a case, the material that the mother relies on, the orders sought by the mother and has also, from the mother’s affidavit, been on notice for some time that both the mother and the Independent Children’s Lawyer have concerns about the efficacy (from the point of view of the interim orders continuing to be in the children’s best interest) it is concerning that the father hasn’t taken the opportunity to contact the Court this day and provided no explanation to the Court.

7. The father has not filed any response to the application in a case.  The father has not made an application for an adjournment.  The father has not sought to attend Court today by telephone.  The file makes clear that certainly on 4 February 2019 the father was able to attend Court, by telephone.  Given this, his ability to do so today is something which I am satisfied he has had known to him.  There has been no appearance today by or on behalf of the father.  There is something by way of at least an explanation.  However, it is not an acceptable (and I am not satisfied it is an acceptable) explanation.  It arises from what is contained in an email exchange, as set out in exhibit A1, between the father and the mother’s solicitors, this day, at 0937.  This was where the father advised the mother’s solicitors that he was travelling and unable to respond to an application in a case.

8. The Court is satisfied the father has had notice of the mother’s application in a case since 1 March 2019.  The Court is satisfied the father has had the ability to file material.  The notice of appeal filed by the father clearly evidences that as it was filed on 4 March 2019.  The Court is satisfied the father has had an opportunity to participate in these proceedings, even if it was electronically as he has done in the past.  In light of all of that, the Court comes to the conclusion that the father has deliberately abjured the opportunity to participate in these proceedings.

9. Having regard to the considerations in respect of adjourning parenting proceedings, I am satisfied the father has had sufficient notice and sufficient service, ought be recorded as having been served on him. In those circumstances, I can make an order pursuant to r.6.14 and 6.15 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) to the extent I need to do so, otherwise dispense with compliance with the rules, to find that the father has been served with the application in a case, filed 1 March 2019, along with the supporting affidavit of the mother, sworn the same day. I also, in light of the email, as between the mother’s solicitors and the other respondent, otherwise dispense with service on her, given, in particular, the confined nature of the orders sought by the mother, in the application in a case.

10. Further having regard to the considerations set out by the Full Court in Jarrah v Fadel (2014) FamCAFC 14 and the principles for the conduct of child related proceedings set out in section 69ZN of the Family Law Act 1975 in respect of adjourning parenting proceedings and given the material in the mother’s affidavit and the nature of the orders sought in the application in a case, it’s not appropriate, in my view for these proceedings to be adjourned.

Consideration of application in case

1. The Independent Children’s Lawyer, who has joined with the mother in support of the orders contained in the application in a case made the submission that it is in the best interests of the children that these proceedings be dealt with in the absence of the father. This was particularly the case as he has had notice of them, he has shown a proclivity to and an ability to participate in proceedings electronically, has shown a proclivity to and an ability to file documents electronically, has shown a proclivity and an ability to file documents as recently as Monday.  Therefore, I can only come to the conclusion that he has chosen not to do so today and there’s no acceptable explanation or evidence for his failure to take up the opportunities and the option available to him to appear and argue against the orders sought by the mother in the application in a case.

2. For those reasons, I have determined it was appropriate to hear from Counsel for the mother today and the Independent Children’s Lawyer in support of the orders sought in the application in a case.  I have had the benefit of hearing their submissions in support of those orders, as well as the raison d’etre for same, having regard to the protracted, and complicated background to this matter.  This included the concerning details set out in the mother’s most recent affidavit, in particular – and I refer to paragraphs [20] through to [33], inclusive, of that affidavit, which, as Counsel for the mother made clear, grounded the mother’s concerns for – and the instructions to her solicitors to seek the orders contained in the application in a case.

3. On consideration of those orders and the detail in the mother’s affidavit, it became clear that the orders actually sought by the mother were, in reality – or practically speaking – more confined than those as articulated in the application in a case and were, in reality, directed to orders 11, 12 and 13 of the operative interim parenting orders made by Judge Williams, on 7 April 2017.

4. I have been handed a copy of those orders.  They were:

   “…

   11.    Order 2(b) made on 14 February 2017 be discharged.

   12.    That in addition to the time the children spend with the Father pursuant to Order 2(a) made on 14 February 2017, the children spend time with the Father as follows:

   (a)  From 10:00am Saturday on 8 April 2017 to 5:00pm Sunday on 9 April 2017.

   (b)  Thereafter each alternate weekend commencing Friday 15 April 2017 from 2:30pm for Y and 3:30pm for X until 5:00pm Sunday.

   (c)  For the June/July 2017 school holidays, the Father’s alternate weekend time to commence on Thursday and conclude on Monday at 5:00pm.

   13.    That for the purposes of changeover the Father will collect the children from childcare/school or if it is a non-childcare/school day from the Mother’s home and the children be returned to the Mother at the Father’s home at the conclusion of time.”

5. I have also been referred to the transcript of the hearing that day which is on the file.  The substantive proceedings continued beyond her Honour making those orders on that day and were, as I have already indicated, most recently were before Judge Williams on 4 February 2019.  However, it appears between 7 April 2017 and 4 February 2019 (and the file is testament to this observation) there has been a lot of water under the bridge.  There have been appeals launched by the father, in relation to, amongst other things, orders made by Judge Williams and I have been told this day all of those appeals, save for the most recent one (which has only recently been filed and is yet to be determined), have been determined adversely to the father.

6. The mother’s affidavit sets out at paragraphs [20] through to [33], inclusive, the most recent communication between her solicitors and the father and grounds the basis for why the mother says – and the Independent Children’s Lawyer supports this – the Court needs to act urgently and suspend the extant interim orders specifically, orders 11 through 13 inclusive.  The mother says this is because of a pattern of behaviour by the father where he has made either threats that he would attend, pursuant to the existing orders, remove the children, notwithstanding the longstanding concerns on the mother’s part, and those held by the Independent Children’s Lawyer, about the efficacy of those orders and the concerns they had for the children, should he do so. 

7. There has recently been correspondence from the mother’s solicitor to the father.  This precipitated a response from the father to the mother’s solicitors, on 26 February 2019, then from the mother’s solicitors back to the father on 28 February 2019 and then from the Independent Children’s Lawyer to the father on the same date.  All this correspondence is set out at exhibit TO2 to TO4, to the mother’s most recent affidavit.

8. The following day the mother filed the application in a case, which has been abridged to today.  The mother put the father on notice of that material, the orders sought and that the matter was in Court today.  The father clearly had the ability not only to communicate with the mother, but to file an appeal from the most recent orders made by Judge Williams on 4 February 2019.

9. In those circumstances, it behoves the Court to act urgently, to ensure that the interim orders continue to be in the children’s best interests.  It is, in summary, for the reasons set out in the mother’s affidavit and elaborated on by both Counsel for the mother and the Independent Children’s Lawyer this day, not in the children’s best interest for them to continue to be subject to the uncertainty caused by the father’s threats and statements of attending without notice and against a background where it doesn’t appear that he has spent any substantive time with the children, pursuant to the existing orders since September or October 2018.

10. It cannot be in the children’s best interests for that to occur unannounced, certainly over the objections of the mother and the Independent Children’s Lawyer. The mother and the Independent Children’s Lawyer point to concerns raised in the recent family report and the father’s failure to cooperate with the orders made by Judge Williams.  It cannot be, it is contended on behalf of the mother and the Independent Children’s Lawyer, for what is, in effect, a risk to the children’s physical, psychological and emotional wellbeing to go unaddressed for there to be the risk of the father attending and removing them from school or childcare, which threat he has made to the mother as recently as last weekend, the 1^st, 2^nd and 3^rd of March 2019.

11. The Independent Children’s Lawyer, as elaborated in submissions made this day, holds concerns for the children, in the father’s unsupervised care.  Sufficient concerns has driven the Independent Children’s Lawyer to support the mother’s application in a case that, in effect, the operative interim time spent orders be suspended until further order. 

12. When pressed to explain the basis for this, submissions made on behalf of the Independent Children’s Lawyer have pointed to the unfortunate history of this matter the father’s obdurate and uncooperative behaviour, the impact of these proceedings on the mother and, therefore, by extension, the adverse impact on the children and their primary carer worried that the father may act unilaterally.  I’m satisfied there are sufficient reasons to deal with this matter in the exigent circumstances referred to in the mother’s affidavit and the Court should act protectively and ensure that the children are not at risk.  The Independent Children’s Lawyer has clearly identified there is an appreciable identifiable risk which can be addressed by the Court, taking the proportionate step of suspending the operative interim parenting orders, that is paragraphs 11 through to 13, inclusive, of the orders of 7 April 2017.

13. The Court is asked to make parenting orders, by virtue of the mother’s application in a case.  The approach to the making parenting orders is summarised in a decision of the Family Court, published as Eyton v Eyton (2013) FamCA 657 as follows:

    “…

    31.    Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

    32.    When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

    33.    When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

    34.    The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

    35.    However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

    36.    In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

    37.    If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

    38.    The principles outlined above have been authoritatively examined in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.”

14. The Court is asked, in the particular circumstances of this case, to consider suspending interim parenting orders.  The approach to making interim parenting orders has been summarised at paragraph 82 of a decision of the Full Court of the Family Court, published as Goode & Goode [2006] FamCAFC 1346 as follows:

    “…

    82.    In an interim case that would involve the following:

    (a) identifying the competing proposals of the parties;

    (b) identifying the issues in dispute in the interim hearing;

    (c) identifying any agreed or uncontested relevant facts;

    (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

    (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

    (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

15. Subsequent decisions of the Full Court of the Family Court, including in Banks v Banks [2015] FamCAFC 36, have noted the difficulties that confront Family Law Courts dealing with interim parenting proceedings. I have turned my mind to each of the relevant section 60CC factors and I note what the Full Court had to say about that in the context of interim disputes.

16. This is a case, complicated, as it is, by the failure of the father to properly participate, where I am satisfied he has had the opportunity to do so for the operative interim parenting orders to be suspended given the exigent circumstances, on the mother’s case, created by the father’s alleged behavioural concerns.

1. There are a number of the relevant factors set out in 60CC that pertain here.  The second of the primary considerations grounds the need for, looms large in and provides the raison d’etre for acceding to the orders sought by the mother and the Independent Children’s Lawyer this day.  That was the gist of the submissions made by them, in support of their application that the court suspend those operative interim parenting orders, until further order.

2. Those submissions were made both against the history of the matter and notwithstanding that the matter is fixed for a trial on 17 June 2019 before another judge of this Court.

3. In those circumstances, I can’t ignore the risk clearly identified by the mother and the Independent Children’s Lawyer to the children’s best interests, created by the father’s threats and behaviour and clearly evident on the material before the Court.

4. This Court, in making decisions as to what is in the children’s best interests often has to weigh probabilities of risks and identify what would be the likely damage caused, were that identifiable risk ultimately to transpire.  The mother, in her affidavit, clearly identifies what possible prospects that could involve, the children being removed from Melbourne, from Victoria and, potentially, even from Australia.  These are all threats that the mother says the father has made previously, that could frustrate the proper exercise of this Court’s jurisdiction, let alone place the children at risk in his unsupervised care.

5. In those circumstances, the most proportionate response to the risk raised by the mother, and supported by the Independent Children’s Lawyer, is to, in the children’s best interests, balancing, as I have, all of the relevant section 60CC factors, to suspend the operative interim parenting orders.

6. There is not, as far as I understand it, in place an interim order for equal shared parental responsibility.  Given section 61DA(3), it’s not a case where it would be, in my view, appropriate for the presumption to be applied, in any event.  It is also not in the children’s best interests, or reasonably practicable, for the children to live equal time with both of their parents or for the children to live with one parent and spend substantial and significant time with the other.

7. There have been arrangements for the children to live with the mother and spend time with the father, in accordance with the orders of 7 April 2017.  Those orders have been the subject of constant complaint between the parties.  However, it would appear it’s uncontested, at this stage, that the father hasn’t actually exercised substantive spend time with the children in the Melbourne area since late September/early October 2018.  

8. The Independent Children’s Lawyer, noting that those orders are extant, expressed concern that a school or a childcare centre, where the children attended even if they had concerns about the father attending could not, in the face of those orders stand in the way of the father.  In those circumstances, the position of the Independent Children’s Lawyer is that identifiable risk cannot be allowed to continue.

9. The most propionate and child focused way to address the identifiable risk is to suspend those interim extant parenting orders, to reserve the father’s time, to make orders as set out in the minute of the order which Counsel for the mother had leave to file in Court this day.  The mother is to serve the father, given these proceedings have taken place in the absence of him, with a copy the orders made this day doing that within 7 days and he have 7 days thereafter to apply to set aside. Otherwise, the matter be adjourned on that basis with the date already fixed which, as I understand it is the 17 June 2019.

10. For those reasons, I so order.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate: 

Date:  21 March 2019