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

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.
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:

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.
The respondent father’s time with the children be reserved.
The applicant mother and the Independent Children’s Lawyer serve the respondent father with a copy of these orders within 7 days.
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)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Teitzel & Olman & Anor

Details

AGLC: Teitzel & Olman & Anor [2019] FCCA 718
Case: [2019] FCCA 718
Decision Date: 6 March 2019

CaseChat Overview and Summary

This case involved an application in the Federal Circuit Court of Australia by the applicant mother, Ms Teitzel, against the respondent father, Mr Olman, concerning parenting orders for their two children, X and Y. The dispute centred on the mother's urgent application to suspend existing time spent orders in favour of the father, citing fears for the children's safety and the father's alleged obstructive and vexatious conduct throughout the proceedings. The mother also sought to dispense with personal service on the father and proceed with the application undefended.

The court was required to determine whether to grant leave to proceed undefended, dispense with personal service on the respondent father, and crucially, whether to suspend the existing orders for the time the children spent with the respondent father. The court also had to consider the father's liberty to apply to set aside any orders made.

In its reasoning, the court applied Rules 6.14, 6.15, 1.06, 13.03A, 13.03B, 13.03C, and 16.05(2) of the Federal Circuit Court Rules 2001. The court found that the respondent father had notice of the application, despite personal service being dispensed with and service effected by email. It also noted the father's history of obstructive behaviour and threats of further appeals, which supported the mother's application to proceed undefended. The court considered the urgent nature of the application, stemming from the father's stated intention to collect the children from school without notice and the mother's genuine fears for their safety, supported by the Independent Children's Lawyer's view that supervised contact was appropriate.

The court ordered that personal service on the respondent father be dispensed with and that service by email be deemed sufficient. Leave was granted to proceed undefended. Crucially, the court ordered the suspension of the time the children spent with the respondent father pursuant to previous orders made on 7 April 2017, and reserved the father's time with the children. The respondent father was granted liberty to apply to set aside these orders upon filing an application and affidavit detailing his failure to respond or attend court and explaining why the orders were not in the children's best interests.

Orders

Orders of the court

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.

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:

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.

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

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

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.

Background

Background to the litigation

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.Background3.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. Biasb. Procedural unfairnessc. 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.Urgency10.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 2nd April and Sunday 3rd 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 Report28.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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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