Theophane and Hunt

[2012] FamCA 69

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT [2012] FamCA 69

FAMILY LAW – CHILDREN – STAY OF PROCEEDINGS – Application by father seeking a stay of orders pending determination of appeal – stay dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 6 February 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 6 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B. Reaston

SOLICITOR FOR THE APPLICANT: O’Reily Stevens Bovey

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDPENDENT CHILDREN’S LAYWER Ms Gray

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Susan Gray

Orders

1. The father’s application for stay of the order made on 5 December 2011 is dismissed.

2. The mother’s costs application is stood over for argument, provided that the mother has such application re-listed within twenty eight (28) days for either determination of the father’s appeal or withdrawal or dismissal of that appeal.

3. The suspension of the order with regard to the child spending time with the father continue, pending determination of the issue of accommodation, such application to be listed before His Honour Justice Watts at 4.15pm on Thursday 8 March 2012 at Cairns.

4. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS REQUESTED

5. A family court counsellor, by notice from the Independent Children’s Lawyer, inspect the premises in which the father is currently residing and provide a short report to the court, the Independent Children’s Lawyer and the parties.

6. The Independent Children’s Lawyer, as soon as possible, convene a conference for the purpose of arranging a time for the child to see the father during the days, but not overnight, in circumstances that:-

   (a)the parties to not meet; and

   (b)the changeover meets the needs of the child.

   IT IS DIRECTED

7. The father forward documents upon which he wishes to serve and rely, in the course of these proceedings, by both ordinary pre-paid post to the postal address of the Independent Children’s Lawyer and the mother’s solicitor, and forward that material by email to their email addresses.

8. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS NOTED

9. The father’s present address for service is … Cairns Queensland and his email address is …

   IT IS CERTIFIED

10. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Theophane (the father) and Ms Hunt (the mother) arising out of a determination I made on 5 December 2011, in circumstances where this matter was the subject of an interim hearing on 9, 10 and 11 November 2011.  The father filed an application on 13 December 2011 seeking a stay of some of the orders I made on 5 December 2011.  In essence, he wanted the child returned to his primary care and for the child to have supervised time with her mother.  The father had filed on the following day an appeal in relation to those interim orders, which were contained in a notice of appeal which was part of the material before me.  There are 10 grounds of those appeals to which I have had regard.

2. The mother has filed a response to that application seeking its dismissal, and seeking costs on the application in the case and further orders.  The matter had been relisted before me a little later by the Independent Children’s Lawyer, who was concerned about the residential arrangements for the child.  Finally, the mother had filed an amended application seeking orders that the time the child spends with the father be suspended until he obtains suitable accommodation.  The father relied upon two affidavits of Ms HN from the S Day Care Centre, his affidavit which he filed in court this morning of 6 February 2012, together with an affidavit of service which he filed in court this morning.

3. The father also relied upon his affidavit filed 13 December 2011 and his affidavit filed 11 January 2012.  The father sought, during the course of his submissions, to tender a bundle of documents which were, he said, relating not to evidence but in relation to submission.  However, when those documents were identified, it was clear that they were in many ways matters of evidence and I would not allow them.  He complained that the mother had been allowed to file a bundle of documents during the course of the interim hearing.  This was in different circumstances as these documents were documents collected from the documents on subpoena, and was made available to the father and the Independent Children’s Lawyer at the commencement of the three-day interim hearing.

4. The mother relied upon her application to case, her amended response, her affidavit filed 1 February 2012, an affidavit of Mr Z filed the same day, and a number of affidavits by Bevlee Reaston filed 1 February 2012 and 6 February 2012.  The Independent Children’s Lawyer relied upon an affidavit by her filed 1 February 2012. 

5. There are essentially three issues for me to determine, and I will determine them in order.  The first being the father’s stay application in respect of the parenting orders, the second being the father’s application that I should no longer hear this matter, and the third as to what arrangements ought to be made with regard to the child spending time with the father, pending the father obtaining alternative accommodation or determining that that accommodation which he has is adequate.

6. The father had initially filed his application asking that the stay be granted ex parte in the absence of notification to the mother and to the Independent Children’s Lawyer.  I dismissed that ex parte application and referred the matter for hearing today.  I gave reasons in that respect.  The substantive proceedings relate to a child, X, who was born in September 2006 and is now aged five.  Sadly, the child has been involved in litigation in one form or another for the whole of her life.  In September 2010, an event occurred at which time the father was stabbed by the mother, and the mother was charged with attempting to murder the father.  As I understand it, those proceedings remain on foot.

7. I set out a background to the proceedings in my reasons published on 5 December 2011, and I incorporate that introduction and the background in these reasons.  The father’s grounds of appeal are:

   a)That I erred in law under division 12A.

   b)That the mother had not been assessed by a mental health unit at M.

   c)That by referring to a decision of Fargo & Lark, I exhibited bias.

   d)That I erred in law in not addressing the section 60B factors under the Family Law Act.

   e)That I erred in law in concluding that the mother was not an unacceptable risk to the child.

   f)That I denied the father procedural fairness and conducted the hearing in a manner that was not authorised by the Act or Rules, and caused significant procedural unfairness to the father.

   g)I failed to allow him to respond to the mother’s submissions.

   h)That the mother had not financially supported the child being in the father’s care.

   i)The failure to consider shared parental responsibility.

   j)That the respondent poses an unacceptable risk to the child herself and the father and, as such, that was an error in law.

8. The father filed a significant quantity of material in support of his application, much of which was irrelevant to this determination and seemed to address his dissatisfaction with the outcome of the case rather than the issues relating to a stay.  However, I have had regard to them.  I am conscious that in terms of the stay, the mother or a party is entitled to the benefit of the judgment that has occurred.  This was an unusual interim hearing; such was the serious nature of the various allegations that were made by each party against the other.  For this child, both of her parents, it appears now, are at risk of spending time in jail. 

9. There are serious charges pending against the mother and, from what I can ascertain, there are serious charges pending against the father.  I was alert to that possibility when I listed this matter for interim hearing and in fact, I raised that with the parties.  And instead of undertaking what this court often does; that is to allow a two hour hearing, I dealt with this matter over three days.  Witnesses were cross-examined, there was a family report, and there was expert psychiatric evidence.  I had regard to that material in my reasons.  The father was unrepresented during the course of the hearing and during the course of the hearing, I indicated that on the Friday evening I would be taking submissions.

10. The father complained that he would, in the circumstances, be unable to deal with submissions at that time.  I accepted his submission in that regard and I gave him time to file submissions in accordance with his request.  He had, in fact, four goes at making submissions to me and on each of those occasions, I considered those submissions.  I did not adopt those submissions and as such, the father’s complaints in his grounds of appeal with respect to the mother’s submissions seem weak, at best; perverse, at worst.  The father, in his grounds of appeal, complains that the mother had not financially supported the child whilst in the father’s care.

11. Again, this ground seems to have little basis to it, having regard to the circumstances in this case that the father had not paid any or any meaningful child support for the child over the previous years when the child was primarily in the mother’s care.  There is a real issue in this stay application as to the bona fides of the father.  He was required under the orders to provide the mother and the Independent Children’s Lawyer, and I might add, as was the mother in a mirror order, of any change of address.  The father had been the subject of proceedings in the Supreme Court of Queensland to be evicted from his house.

12. He did not make any of that material available to this Court during the course of that interim hearing.  The father was subsequently removed from that property on 18 January 2012.  He took up accommodation in a backpacker’s accommodation which he described as a holiday resort, on holidays the following day.  He did not inform the Independent Children’s Lawyer or the mother of this significant change of accommodation.  This was a change of accommodation which was profound.  There are no separate bathing or toileting facilities in the room; they are shared with people who may come and may go.

13. The father tried to assure me that this accommodation was safe for the child.  I do not know, but it certainly needed some form of investigation by someone other than the father and I am troubled by his use of this as a holiday or vacation, particularly in the circumstances of which it arose.  The second aspect is that I ordered the father and the mother to undergo some counselling.  In particular, order 11 provided and I quote:-

    The father and mother show, within 14 days of the date of this order, do all acts to separately engage in family therapy, of three to five sessions - the number to be determined by the psychologists, with a clinical psychologist such as [Ms W] or [Mr N], who has specific skills in working with children and supporting parents to make positive changes to their relationship for the purpose of:

    (i)the father to practice reassuring welcomes following the child’s time with her mother, which communicate positively to the child about her spending that time instead of encouraging her to shut it up. 

    (ii)For the father to learn new ways to feel reassured about his relationship to the child, rather than requiring the child’s reassurance for his hurt feelings.              

14. The father’s case seems to be that he saw this psychologist once, and doesn’t need to see her again at her request.  There was no evidence to that effect but it is troubling, particularly in the light of the evidence of the family consultant and of the overall conflict in this case, that such a significant order was treated, at best, in such a cursory or arbitrary way.  Finally, there is evidence of which I need not make any findings but there have been documents not served, documents partly served, and a process which seems to have had the effect of disrupting the proceedings which are referred to in the affidavits of the Independent Children’s Lawyer and the solicitor for the mother.  I make no finding, but I am troubled by that.

15. It was difficult to understand the matters complained of by the father in his reasons for the stay.  His arguments were scattered and confused, despite clearly spending some time writing them.  He asserted on many occasions that I had made errors of fact and errors of law.  He said that I erred in fact by not putting in place independent supervisors.  I had clearly in my reasons considered the question of supervisors and I put those in place, having regard to the evidence that I had articulated.  He complained that I had placed the child in the care of the mother and that it was a significant risk to the child.

16. I understand that that was his case.  He made it clear throughout the three days of the hearing; however, I had before me evidence from the family consultant and the psychiatric experts who differed in that regard, and were cross-examined in relation to that aspect.  He complained that the orders were bad because there was no telephone contact.  I had addressed the question of telephone contact in the context of the proceedings which had existed between the parties.  He asserted that there was an allegation of rape which was of recent invention.  During the course of the hearing, the mother said that she had raised those allegations much earlier in these proceedings but they had been at least before the Federal Magistrate, not treated in a way that she considered appropriate.

17. The father said I did not give sufficient weight to the events on … September 2011.  That is a troubling submission bearing in mind the three day interim hearing, the family report, the expert report and the considerations contained in the reasons.  The father complained that I did not give sufficient regard to the reasons of Coker FM.  I certainly had regard to those, particularly in the lead up to the circumstances both in early September and the weeks before.  The father was endeavouring to call oral evidence by Ms HN from the S Day Care Centre, as to her apparently specialist knowledge as to the relationship between the father and the child.

18. That evidence was not called at that level during the course of the interim hearing and when I raised concerns with the father earlier in this process, I directed him to file further affidavits so that I could understand the nature of what he was trying to say.  He provided an affidavit, but he did not address that issue.  He complained that I gave too much weight to the mother’s evidence, and then complained that I did not make findings in relation to precisely what happened on … September 2011.  He asserted that there was an apprehended bias to which the objective person would have regard and made submissions to that end, particularly in respect of the family consultant being in court at times and not being in court at other times.  His submissions in that area were not clear.

19. When reflecting upon the grounds of appeal, they are not strong to say the least.  I am not prepared to hold that they are without any merit but on the surface, they do not appear to contain significant strength.  It is not, on the face of them, a strong case.  The child is now living with her mother, as she was prior to September 2011 and in circumstances where there is in place a level of supervision, albeit not to the extent sought by the father, and where the issues raised by the family consultant are being addressed at least on the evidence by the mother.

20. If the Full Court determines that there is an error of law in my reasoning, then it is a matter for the Full Court to refer it back to a judge of this Court to determine what other order it would make, if it chooses to do so.  So failure to give a stay would not render nugatory the father’s appeal, that all options are still open to the Full Court.  This child has been primarily in her mother’s care since her birth.  The change was brought about by me in circumstances where the mother had been arrested, charged and incarcerated.  There has been a change then and a change in December.  It is undesirable that there be any further changes to this child’s life at this time, having regard to her commencing school last week or the week before.

21. This stay, if granted, would last some time.  The father has not, as I can discern it, completed the appeal index and it may be some time before this appeal is heard.  The Independent Children’s Lawyer opposes the stay, and complains that she too has not been provided with material upon which the father relies which could either be, as I said, mistake or mischievous.  She is concerned about the father’s bona fides, particularly in terms of his present accommodation.  I am satisfied, on the material before me and having regard to my reasons, that there ought not to be a stay of the order that I made on 5 December 2011 and as such, the stay application is dismissed.

22. I will reserve question of costs for the reasons that I articulated earlier; that is that there may be a determination on the Full Court which could impact on any outstanding costs application.  Accordingly, the costs application be stood over to 28 days after the determination of the appeal.  The next question is whether I ought to disqualify myself from further hearing this matter.  I do not accept the father’s submission that there was apprehended bias or bias shown during the hearing.  This matter was heard quickly and every effort was made to accommodate the father in terms of him being unrepresented.

23. He was given time to cross-examine and when he sought additional time to file his submissions, that request was adopted.  The father is not a stranger to litigation.  This is not the first time that he has appeared at this Court.  So whilst I understand that this place can be difficult, he was given, in my view, a fair go in terms of the hearing.  However, that was the second three day hearing that I had heard with regard to this family.  I made determinations in 2009 which were critical of the father and I raised that with him when I listed this matter for hearing, in fairness, and he was content for me, being aware of that, to continue with the interim hearing.

24. It is clear that any such consent that he gave at that time has been withdrawn.  As such, I intend to refer this matter to the docket of Justice Watts, what is to guide the matter over the next few years whilst the criminal proceedings are being determined.  I am then left with the arrangements for the child.  I have stayed the current parenting orders insofar as the child spends time with the father.  The mother acknowledged fairly during earlier in this day that the child wishes to see the father.  There is a real issue about the accommodation for the child.  I ought not to hear that and that ought to be placed before Watts J when he comes back.

1. I intend to have this matter listed before Watts J for the first day of his next circuit, whenever that may be.  In the meantime, I will direct the Independent Children’s Lawyer to do two things.  Firstly, to make inquiries through the family consultant to arrange for her to visit the father’s accommodation and provide a report, if the father intends to continue living at that address or holidaying at that address, as he asserts.  Secondly, I will urge the Independent Children’s Lawyer to conduct a conference to see whether arrangements can be made for the child to see the father in the interim during the day.

2. In terms of that, it would need to be monitored very carefully.  I raised real concerns in the hearing of the mother being exposed to the father, and the father exposed to the mother.  I will not allow that to occur.  It needs to be done in a way where the changeover is easy on the child, but where these parents do not meet.  Having accepted the father’s view that I ought not to further determine the matter, I will not further determine the matter and it will be listed before Watts J at a convenient date.  In addition, I intend to put in place a direction so that the service of documents does not continue to be the problem that it seems to be, and that everybody has the documents as best as they can have.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 February 2012.

Associate:     

Date:              6 February 2012