Weber and Lipson

[2013] FamCA 500

FAMILY COURT OF AUSTRALIA

WEBER & LIPSON [2013] FamCA 500

FAMILY LAW – CHILDREN – Application for interim orders where final trial only weeks away.
FAMILY LAW – COSTS – Costs application of a self-represented litigant – no order made but costs reserved.

Family Law Act 1975 (Cth)

APPLICANT: Mr Weber

RESPONDENT: Ms Lipson

FILE NUMBER: MLC 5453 of 2012

DATE DELIVERED: 28 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 June 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Shepherd With Mr Mort

SOLICITOR FOR THE RESPONDENT: Currie Law

Orders

1. That the parties and the children attend upon and at the direction of Ms B for the purposes of the preparation of an updated family report at the joint and equal expense of the parties.

2. That for the purposes of the preparation of the report, each party provide to Ms B the affidavit material that they intend to rely upon at the trial of the proceedings listed currently for September 2013 together with their respective affidavits filed 14 June 2013 by the husband and 24 June 2013 by the wife.

3. That until further order, the wife deliver the children to the husband at the commencement of each period of time pursuant to the orders made in August 2012 by not sending them out into the street until the designated time and if the husband is not at the front of the property outside of his car no later than 15 minutes after the appointed time, the wife may presume that he is not collecting them.  The husband otherwise return the children to the boundary of the property at the conclusion of the contact and the wife be ready at that appointed time to assume responsibility for them.

4. That the contravention application of the husband filed 14 June 2013 be listed in the Judicial Duty List at 10 am on 9 August 2013.

5. That the question of the costs of both parties this day be reserved to the trial.

6. That all other outstanding interim issues set out in the application in a case filed 14 June 2013 and the response thereto filed on 24 June 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weber & Lipson 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 MELBOURNE

FILE NUMBER: MLC 5453  of 2012

Mr Weber

Applicant

And

Ms Lipson

Respondent

REASONS FOR JUDGMENT

1. By an order after a first day hearing on 5 June 2013, I set the property and parenting dispute between Mr Weber (“the husband”) and Ms Lipson (“the wife”) down for trial in September 2013.

2. On 14 June 2013, the husband filed:

   ·    An application in a case;

   ·    A contravention application against the wife; and

   ·    Notice of Risk of Child Abuse

3. Because the case is (at this stage) listed for a trial before me, I directed that the applications be listed before me on 24 June 2013 at 9.00am.  The husband represented himself and the wife was represented by counsel.

4. The application in a case sought a variety of orders which I shall paraphrase as follows:

   ·    That the children be urgently psychologically assessed by Ms B specifically in relation to child abuse and family violence or the risk thereof by the maternal grandmother;

   ·    That until further order, pending assessment by Ms B, the children not spend time or communicate with the grandmother;

   ·    That until further order, pending assessment by Ms B, preparation of an updated family report be stayed;

   ·    That an Independent Children’s Lawyer be urgently appointed to represent the children in these proceedings;

   ·    That until further order, pending assessment by Ms B and the appointment of an Independent Children’s Lawyer, all procedural orders for preparation for trial be stayed;

   ·    That the interim parenting orders be varied so that the father communicate with the children by telephone each Wednesday between 8.00am and 8.30am;

   ·    That the mother having waived privilege relating to the parenting aspects of the proceedings, produce all legal advice relating to her conduct of the parenting aspects;

   ·    That the wife pay the costs of Ms B and the Independent Children’s Lawyer; and

   ·    The wife pay all costs of the father on an indemnity basis.

5. In discussion, the husband said that he wanted me to determine the issues about an alteration of the parenting orders but particularly the handover point, the appointment of Ms B as an expert, the appointment of an Independent Children’s Lawyer and his costs. 

6. I shall dismiss the other matters that the husband did not proceed with but not on the basis of lack of merit so that if necessary, the husband can renew his application in the future.  He made clear that he did not want to lose his trial date and whilst that would normally have occurred in the circumstances, I consider this a case in which the overall substantive proceedings need to be concluded soon.

7. The contravention application alleged two breaches of orders made 6 August 2013 (sic).  Clearly the orders were made in 2012.  The breaches alleged were:

   ·    16 May 2013 to 17 June 2013 the respondent refused to allow the applicant to spend time with the children;

   ·    3 June 2013, the respondent refused to allow the applicant to communicate by telephone with the children.

8. I informed the husband that because there was a possibility that I would be the trial judge, and the issues and the approach of the Court in respect of contravention applications was different from that of a parenting dispute, it may be inappropriate for me to hear all of the issues because of the potential for findings of credit and giving rise to a subsequent application for disqualification on the grounds of apprehended bias (see British American Tobacco Australia Services Limited v Laurie [2011] HCA 2). I propose therefore to adjourn the contravention to the Judicial Duty List to be heard by another judge. That course was not opposed by counsel for the wife.

9. At the hearing, counsel for the wife was given leave to file a response and an affidavit to the documents filed by the husband. 

10. The wife sought the following orders:

    · Pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), the parties and children attend upon Ms B for the purposes of an updated family report at the joint expense of the parties;

    ·    The application in a case of the husband be dismissed or consolidated with the substantive proceedings;

    ·    The contravention application be dismissed or in the alternative consolidated with the final proceedings; and

    ·    The husband pay the wife’s costs.

11. When filing the application in a case and contravention application, the husband also filed a Notice of Risk of Child Abuse, Family Violence or Risk of Family Violence.  In that document, he alleged that the acts or omissions constituting abuse were that between 16 May 2013 and 6 June 2013, the maternal grandmother coerced or controlled the children into saying negative and adverse things about the husband and his family and specifically, he referred to the relevant paragraphs of his affidavit to which I shall turn.  As I explained to the husband, the filing of that Notice meant that the Court provided details of it to the Department of Human Services who in due course will investigate.  Having read the husband’s affidavit, I would be surprised if action is taken to remove the jurisdiction of the Court by commencing proceedings in the Children’s Court of Victoria particularly having regard to the fact that there is a trial of all parenting issues pending.

12. I turn then to the application in a case. 

Background

1. The husband is a 45 year old professional and the wife is a 42 year old professional.  They were married in 2003 and separated in May 2012.  They have two children C aged about five years and D aged three years.

2. On 6 August 2012, with both parties represented by counsel, the Court made orders for the children to live with the wife and as an interim arrangement they spend time with the husband on a regime that built up to the present day.  That current arrangement therefore is that the husband spend time with the children on alternate weekends from Saturday morning until Sunday night and each Thursday from early in the morning until the following Friday morning.  Those orders provided that the husband was to pick up and return the children at the wife’s residence. 

3. There is some significance in those orders because when I turn to the substantive applications that are pending before the Court, it will be seen that the husband is seeking final orders in much the same terms as the extant interim orders.

The handover of the children

1. The issue of the handover of the children was contentious.  Although not specifically said in the proposed orders of either party, it would seem that the wife’s residence is the problem.  Despite the simplicity of the August 2012 orders, the wife insisted that the husband wait at the letter box at the front of the home.  The husband complained that the children were left standing in the cold (in Melbourne on the morning of the hearing, it was extremely cold).  The wife pointed to the intervention order in her favour and to an incident in which she said that the husband had breached it.  Her evidence was that subsequent to the order being made, she found a wedding quilt partially under the front of her car parked outside her residence.  She said that at first glance, it appeared as if there was a body wrapped in it.  She annexed to her affidavit two photographs and they certainly give that impression.  She made inquiries of the children’s nanny who indicated that the wedding quilt had not been in that place when she had earlier arrived and therefore drew the hypothesis that the husband had placed it there.  She concluded that this was done to scare and intimidate her.  She reported the matter to the police.  In the courtroom, the husband conceded that he had been interviewed by the police but was unaware of whether or not he would be charged.  According to counsel for the wife and not denied by the husband, the husband’s interview with the police was a “no comment” record.

2. The wife further said that on 6 June 2013, she received a text message from the husband in breach of the intervention order and that too had been reported to the police.

3. There are two possible solutions to a situation like this.  The first is that the orders should be changed so that the children are exchanged at a contact centre.  To do that however would mean altering the existing orders because of the potential for the contact centre not to be open at the time that the orders provide.  Both parties expressed a reluctance for that order to be made notwithstanding that the handover point would not be that far from the wife’s current residence.  Counsel for the wife indicated to me that he had advised his client of that solution and she would reluctantly accept it.  An alternative solution would be to bring the children down only at the point that the husband actually arrived and was observed standing outside his car.  I do not know the precise details of the physical layout of the area around the home but it may be that that is the only solution.  It will certainly cause inconvenience for both parties but I propose to make that order and to give the wife some assistance to provide that if the husband is more than 15 minutes late from the designated time, the wife may presume that he does not intend to collect the children and she can then take them inside without having to produce them to the husband.

The evidence 

1. It is important to point out that I am not in a position in an interim hearing to make findings on the evidence.  Findings are required in many if not most cases to enable courts to make determinations within the law.  As will be seen, many of the factual issues in dispute here could only be determined after the evidence is tested.

2. It is well understood that for the purposes of an interim hearing (both as to financial and parenting issues) the Court should not be drawn into making findings of fact in relation to contentious issues unless there is clear evidence enabling it to do so.

3. Specifically in relation to parenting matters, notwithstanding the hearing is an abridged version of a trial relying upon untested evidence, the Court is still obliged to apply the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

4. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode and Goode (2006) FLC 93-286).

5. In Goode (supra) the Full Court indicated that the Court should:

   ·    Identify the competing proposals;

   ·    Identify the issues in dispute;

   ·    Identify any agreed or uncontested relevant facts;

   ·    Consider the matters in s 60CC that are relevant and if possible make findings.

6. In his affidavit filed 14 June 2013, the husband said that he was gravely concerned about the children being

   increasingly subjected to psychologically dangerous and damaging behaviour by the maternal grandmother.

   He described that as coercing or controlling the children to say or not say things or do things, that excited them into a high state of “distress, confusion and anxiety” and which caused them to be fearful of him and his family.  All of this was directed to the maternal grandmother.  He then went on to say that he was gravely concerned that the wife was conducting the proceedings in an unreasonable manner which was adversely impacting on the children and causing them to suffer serious psychological harm.

7. With those philosophical statements, he said that between 16 May 2013 and 6 June 2013 he witnessed a number of things which included:

   ·    C becoming distressed and upset, crying and clinging to a day-care worker saying that she did not want her father to collect her from day-care;

   ·    The day-care director indicating that they had not seen C so upset before and that it was completely out of character;

   ·    C hiding from him;

   ·    C forcefully grabbing his head in the street and violently twisting it away from the direction of the wife’s home and saying to him not to look at “her”;

   ·    The child D loudly and aggressively describing the husband as bad;

   ·    Both children asking him whether he had friends and whether he liked a number of named people;

   ·    D becoming distressed and anxious asking where his father was and was he still alive and whether someone had killed him;

   ·    C asking similar questions about the husband’s mother;

   ·    C telling him that her grandmother had said that she had to talk about the things above to “help” remember him and what happened;

   ·    D urinating on toilet seats after refusing to lift them;

   ·    D saying that he hated himself;

   ·    C saying that her mother did not like the husband and she was not allowed to talk about it;

   ·    D saying that no-one liked him.

8. The husband concluded from all of this that the children were struggling to cope with the marriage breakup and that it was the adults who were talking to the children raising these themes.  I could not make that finding on the untested evidence.

9. The husband also concluded that the maternal grandmother was coaching and manipulating the children telling them concocted stories about the husband and his family.  Again, that is a fact in issue.

10. In her affidavit filed 24 June 2013, the mother said that the matters were appropriate for consideration by Ms B but otherwise said little about the words that the children were using.  In respect of her mother, it seems that in May 2013, the maternal grandmother came from Perth to Melbourne and will reside in Perth permanently in the future.

11. I do not know what to make of the statements of the children and whether it is appropriate to conclude as the husband has done that they arise out of some intimidation of the children or coaching of them.  As earlier indicated, I was not asked by the husband to vary the extant parenting orders other than in relation to the handover on the basis that there is a forthcoming trial.  Those matters however are relevant to the issue of whether or not there should be an Independent Children’s Lawyer appointed.  I shall come to that in a moment.

12. Having regard to the nature of the application before me, there is no basis for me to deal with the provisions in s 60CA, s 60B or s 60CC.

13. The husband urged me to make an order for the appointment of an Independent Children’s Lawyer.  In Re K (1994) 17 Fam LR 537; FLC 92-461, the Full Court issued guidelines as to the circumstances in which an Independent Children’s Lawyer should normally be appointed. Those guidelines included the appointment in cases where there were allegations of child abuse, an intractable conflict between the parents, where a child is alienated from one or both parents and so forth.

14. The husband raised the question of the children’s views having regard to their tender ages but that is a matter more appropriately handled by the proposed family report writer.

15. In the husband’s amended response filed 4 June 2013, he made clear he had been served with the amended initiating application of the wife filed 22 May 2013.  He disagreed with any amendments to the existing orders.  He then set out the nature of the parenting orders that he wanted and said exactly the same thing again.  On any view therefore, the nature of the dispute is limited.  In her initiating application, the wife sought what on its face appears more time than that which is sought by the husband.  On any view though, the dispute is limited to the nature of the relationship between the husband and the children.

16. In addition to the guidelines issued by the Full Court in Re K (supra), the issue of the role of the Independent Children’s Lawyer can be seen in s 68LA of the Act. The general nature of that role is to form an independent view of what is in the child’s best interests and then to articulate it. Having regard to the limited nature of the dispute here and what appears to be the involvement proposed by the expert witness Ms B, it is hard to see how much assistance the Court will achieve from an Independent Children’s Lawyer.

17. Section 68L(2) provides that if the Court considers that the children’s interests ought to be independently represented, an order should be made.  Effectively therefore, the Court has a discretion.  The discretion should not be exercised here for three reasons.  They are:

    (a)the issue is limited as I have described;

    (b)the Court will have the benefit of expert evidence about why the children are saying the things that they are; and

    (c)the undoubted limited resources of Victoria Legal Aid must be taken into account.

18. In respect of the Victoria Legal Aid resources issue, the husband was asked whether he would be prepared to pay for such an appointment and he indicated that he would pay half.  The wife was not interested in an Independent Children’s Lawyer and the husband was clear about his position.  That being the case, I see no practical value in the legal aid resources being used in a case such as this.  I say that notwithstanding the intractable conflict between the parties and the allegations of psychological abuse which seem mostly directed at the maternal grandmother.

Ms B

1. Both parties sought an order for the appointment of a family report although for different reasons.  It is not necessary nor appropriate for the Court to constrain the expert as to not only how the task should be undertaken but also the nature of the issues to be canvassed.  In respect of the latter, the expert will have the affidavit material of both parties. 

2. Both parties have sufficient confidence in Ms B as an expert and no doubt they can make arrangements for her to undertake the task.  The husband wanted the report undertaken urgently and with some immediacy.  In my view, the parties can negotiate that issue having regard to the fact that the trial is in September.  Each party should pay one half of those costs.

The husband’s costs

1. The husband sought an order that the wife pay his costs.  When I inquired why that should be so, the husband pointed to the basis of his application and the contravention but not otherwise.

2. Section 117 of the Act provides that in proceedings in this Court, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. In Cachia v Hanes and Anor [1994] HCA 14; (1994) 179 CLR 403 the plurality observed that costs are ordinarily awarded as an indemnity for legal costs actually incurred. At this stage, there is nothing in the affidavit material that justifies a departure from the principle that each party pays their own costs for these proceedings. However, having regard to the fact that this was a very limited and truncated hearing, I propose to reserve the costs of both parties to the trial.

I certify that the preceding Forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 June 2013.

Associate:   

Date:  28 June 2013