Wollam and Backen

[2020] FamCA 259

FAMILY COURT OF AUSTRALIA

WOLLAM & BACKEN [2020] FamCA 259

FAMILY LAW – CHILDREN – Interim – Where the parties and witnesses reside in Northern NSW – Matter transferred to Brisbane Registry – Where the applicant mother retained the three younger children and returned the elder three children to the respondent father – Order made for all six children to live with the father – Order for the children to spend alternate weekends with the mother – Order for further submissions regarding the binding financial agreement.

Family Law Act 1975 (Cth) ss 68P, 90E, 90UC, 90UH, 117(2A).
Family Law Rules 2004 r11.18.

APPLICANT: Ms Wollam

RESPONDENT: Mr Backen

FILE NUMBER: SYC 1022 of 2020

DATE DELIVERED: 21 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Ryan QC

SOLICITOR FOR THE APPLICANT: Yates Beaggi Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That these proceedings be transferred to the Brisbane Registry of the Family Court of Australia.

2. That the children B born … 2005; C born … 2008; D born … 2010; E born … 2012; F born … 2014 and G born … 2014 live with the respondent.

3. That the applicant forthwith return the children E, F and G to the care of the respondent.

4. That commencing on Friday 1 May 2020 the children spend time with the applicant from after school (or 3.30pm if the children are not attending at school) each alternate Friday until 5.00pm on the following Sunday.

5. That each parent is restrained from:

   (a)physically disciplining the children;

   (b)denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;

   (c)discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;

   (d)permitting any of the children to have access to any of the documents filed in these proceedings;

   (e)communicating any information intended for the other parent through the children;

   (f)causing the children to be a medium in any way to adult members between the applicant and the respondent or between the applicant and the respondent and any other person; and

   (g)discussing major long-term matters with the children including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the children or the parties agree to the matter being raised and discussed with the children.

6. That pursuant to section 68L(2) of the Family Law Act 1975 (Cth) an independent children’s lawyer be appointed on behalf of the children B born … 2005; C born … 2008; D born … 2010; E born … 2012; F born … 2014 and G born … 2014 AND IT IS REQUESTED that Legal Aid Commission of Queensland arrange such separate representation.

7. That forthwith upon appointment by the said Legal Aid Commission of Queensland, the independent children’s lawyer file a Notice of Address for Service.

8. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

9. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

10. That, as soon as is practicable, the parties attend mediation with a suitably qualified family dispute resolution practitioner in relation to their parenting dispute.

11. That within four weeks of the date of these orders, the respondent file and serve written submissions in relation to the application for spousal maintenance and that the applicant file and serve submissions in reply within a further two weeks.

12. That within four weeks of the date of these orders, the respondent file and serve a Financial Statement.

13. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

IT IS ORDERED BY CONSENT

1. That each party be restrained from permitting or causing the departure of the children B born … 2005; C born … 2008; D born … 2010; E born … 2012; F born … 2014 and G born … 2014 or any of them from the Commonwealth of Australia.

2. That the Australian Federal Police place the names of the children B born … 2005; C born … 2008; D born … 2010; E born … 2012; F born … 2014 and G born … 2014 on the Family Law Watch List, which may also be known as the PACE Alert System or Airport Watch List, in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court Orders its removal.

3. That the solicitor for the respondent hold the children’s passports and undertake not to release them to the respondent without first giving the solicitor for the applicant 14 days written notice and to give effect to this Order the respondent shall cause the said passports to be delivered to his solicitor within seven days of these Orders.

4. That the parties will do all things and sign all documents to ensure that the children have and maintain valid passports and each of them will be responsible for one-half of all cost associated with obtaining the children's passports.

5. That the parties shall each advise the other within seven days and thereafter keep each other advised of a single contact telephone number.

6. That the parties shall keep each other advised of their residential address and provide to the other party 28 days’ notice in writing of any intention to change that address.

7. That the parties be entitled to obtain directly from any school attended by the children or any health or welfare professional or other professional (excluding any confidential counselling) attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose, the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

8. That the parties shall do all things necessary to authorise each of the children’s schools to provide the other parent on a regular basis copies of all school reports, school newsletters, and any other information regarding the children’s school activities.

9. That the parties shall immediately notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children, when the children are in their care and together with any such notice the parent shall provide, the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment.

10. That without admission each party be restrained from consuming or being affected by alcohol at any time during which they spend with the children.

11. That without admission each party be restrained from denigrating or disparaging the other in front of the children.

12. That UPON the applicant undertaking to the Court and to the respondent to submit to such order (if any) as the Court may consider appropriate for the payment of damages and compensation arising consequent upon entry of the this Order to the respondent and/or any company or trust under the respondent’s control adversely affected by the operation of the following interlocutory injunctions or any continuation (with or without variation) thereof (including but not limited to the entities specified therein) any such damages and compensation to be assessed by the Court or as it may otherwise direct AND without concession as to jurisdiction AND without admission as to any warrant or necessity for such an Order, then pending further Order or agreement between the parties in writing, and unless in the ordinary course of day to day business, the respondent be restrained by way of injunction from disposing, transferring, further encumbering or otherwise attempting to sell his interest in and without limitation the following:

    (a)the property described as H Street, Suburb J in the state of Victoria being the whole of the land contained in Certificate of Title Folio Identifier Volume … Folio ….

    (b)the property described as K Street, L Town in the state of New South Wales being the whole of the land contained in Certificate of Title Folio Identifier ….

    (c)shareholding in all companies including without limitation described as:

    (i)    M Pty Ltd A.C.N. …20;

    (ii)  N Pty Ltd A.C.N. …26;

    (iii) O Pty Ltd A.C.N. …34;

    (iv) P Pty Ltd A.C.N. …16;

    (v)   Q Pty Ltd A.C.N. …74; and

    (vi) R Pty Ltd A.C.N. …58.

13. That without concession as to jurisdiction and without admission as to necessity and in the event that the respondent wishes to deal with any of the interests noted in Order 25 then the respondent shall give the applicant no less than 14 days written notice of such intended dealing, including particulars of the proceeds of such dealing.

THE COURT NOTES

1. That the provisions of Orders (2), (3) and (4) may be inconsistent with an Interim Apprehended Domestic Violence Order made on the application of the applicant on 1 April 2020.

2. That the solicitors for the applicant and the respondent are requested to explain to their respective clients the effect of these orders, the reasons for making these orders and the circumstances in which an application can be made for the revocation or variation of an order.

3. That having regard to the ages of the three subject children, it is neither necessary nor appropriate for the orders to be explained to the children.

4. That the Registrar is requested to provide a copy of these orders to the Registrar of the Local Court in L Town, the Commissioner for Police for the state of New South Wales and to the Department of Community and Justice.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1022 of 2020

Ms Wollam

Applicant

And

Mr Backen

Respondent

REASONS FOR JUDGMENT

1. Ms Wollam (“the applicant”) and Mr Backen (“the  respondent”) lived together in a de facto relationship from 2005 and finally separated in 2019. Together they had six children, B aged 14; C aged 11; D aged 9; E aged 7 and twins, F and G aged 5.

2. On 16 January 2019, the parties entered into a financial agreement pursuant to section 90UC of the Family Law Act 1975 (Cth) (“the Act”).

3. Substantive proceedings in relation to parenting and property were instituted by the applicant in February 2020.

4. At the time of the interim hearing, B, C and D were living with the respondent and E, F and G were living with the applicant. That arrangement was a recent one.

5. The matter came before the Court on 14 April 2020 in relation to a suite of interim applications which are listed in the order in which they were dealt with:

   ·    The respondent’s application for a change of venue.

   ·    The competing applications for parenting orders.

   ·    The applicant’s application for payment of $500,000 litigation funding pursuant to s117(2A) both in relation to parenting proceedings and financial proceedings.

   ·    The applicant’s application for periodic maintenance.

6. There was agreement in relation to orders for the preservation of assets pending the substantive hearing and in relation to certain parenting orders relating to travel, schooling, medical matters and the like. It was also agreed that the parties should attend mediation with a suitably qualified mediator/family dispute resolution practitioner, in relation to the parenting arrangements.

CHANGE OF VENUE

1. The respondent seeks an order transferring these proceedings to the Family Court in Brisbane. Both parties live in L Town which is within a reasonable driving distance of Brisbane. The applicant deposed that the distance from L Town to Brisbane is 167 kilometres.

2. The factors to be considered in such an application are set out at Rule 11.18 of the Family Law Rules2004 in the following terms:

   Factors to be considered for transfer

   (1) In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:

   (a)     the public interest;

   (b)     whether the case, if transferred or removed, is likely to be dealt with:

   (i)            at less cost to the parties;

   (ii)at more convenience to the parties; or

   (iii)           earlier;

   (c)     the availability of a judicial officer specialising in the type of case to which the application relates;

   (d)     the availability of particular procedures appropriate to the case;

   (e)     the financial value of the claim;

   (f)     the complexity of the facts, legal issues, remedies and procedures involved;

   (g)     the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and

   (h)     the wishes of the parties.

3. No submissions were addressed to the matters in sub-sections (a), (c), (d), (e), (f) or (g) and no evidence relevant to those matters was drawn to my attention.

4. In relation to (a) and (h), the applicant chose to initiate these proceedings in Sydney.

5. On behalf of the applicant it was submitted that, she having engaged senior counsel and three junior counsel in Sydney, would incur more costs if the proceedings were to be heard in Brisbane. The respondent also has engaged senior counsel from Sydney so the cost to him will also be increased. However, the hearing is a considerable time off and the parties may choose to instruct other counsel.

6. All of the witnesses who have thus far sworn affidavits are located in the environs of L Town. If those witnesses are required for cross-examination, it will be easier for them to appear in Brisbane than in Sydney.

7. An Independent Children’s Lawyer (“ICL”) will be appointed for the children. Since that person will have to interview the children, he or she will be a practitioner from the Brisbane or the L Town area. It is likely that Brisbane will be a more convenient venue for the ICL than Sydney.

8. No Chapter 15 expert has yet been appointed but the parties can as easily instruct an expert in Brisbane as in Sydney. The parties and the children will be required to attend upon the expert for interviews. I accept the applicant’s evidence that the travelling time from L Town to Brisbane by car is about the same as the time taken to fly from L Town to Sydney. No doubt car travel is cheaper than air travel for a family of six children.

9. On balance, these matters favour the transfer of the proceedings to Brisbane.

10. Both parties agree that an ICL should be appointed for the children and a request for that appointment will be made to Legal Aid Queensland.

INTERIM PARENTING

1. The applicant seeks orders that the three younger children remain living in her care and that the three older children live in the care of the respondent. She proposes that the children spend time with their non-resident parent “as agreed”.

2. The respondent seeks orders for the children to live with him and proposes that they spend time with the applicant on each alternate weekend, for half of the short school holidays and in a week about arrangement for the long holiday.

3. It is instructive to consider how it was that the children came to be separated, the younger three living with the applicant and the older three living with the respondent.

4. It is to be borne in mind that these are interim proceedings and where there are disputed facts, no determination can be made. However, there is a reasonable consensus in relation to the broad history of events.

5. In December 2017, according to the respondent, they bought property in L Town. It would appear from the affidavit of the applicant that they retained their residence in Melbourne and that they lived there from time to time. The applicant worked in Melbourne and the respondent also had business interests in Melbourne.

6. The applicant alleged that in about May 2018, the respondent assaulted her. On 31 May 2018, an Interim Intervention Order (“IVO”) was made for the protection of the applicant. As a consequence, the respondent moved out of the Melbourne property and moved to L Town.

7. In late June 2018, the parties agreed to the children travelling to Country AA with the respondent for two weeks.

8. The applicant wrote to the respondent’s solicitor on 9 September 2018, stating that she and the respondent were rebuilding their relationship and that she was “comfortable at this time for the order being extinguished”. Although there had been previous discussions about the respondent giving undertakings, the applicant wrote “I don’t believe an undertaking is necessary at this time either”. She referred to “our family moving forward amicably and harmoniously”.

9. The applicant asserts that from about October 2018 the parties reconciled and lived together at the L Town property with the children. They travelled as a family together and spent Christmas in the USA.

10. In February 2019, the applicant travelled for a month overseas and the children lived with the respondent.

11. The children were enrolled in schools at L Town.

12. The applicant continued to work in Melbourne doing sessional work and lived at the L Town property when she was not working.

13. On 25 April 2019 the applicant wrote to the respondent’s solicitor, stating that the respondent had asked her to leave the L Town home and that she agreed to do so. In the letter, the applicant referred to her wish to see the children regularly. The applicant had no settled accommodation available to her in L Town and it is clear that it was their joint intention that the children would remain living with the respondent. However, the applicant did not leave the home.

14. On 17 May 2019 the applicant and the respondent argued. The police were called. The applicant left. There is a dispute as to when and for what periods the applicant returned to the home. The applicant asserts that she returned to live there and that the respondent “threw [her] out” on three or four occasions. The respondent asserts that the applicant left the home on 17 May and then only came back to spend time with the children on weekends.

15. It appears to be agreed that, whatever had occurred after 17 May, they did not live together again after 7 June 2019, according to the respondent, or 9 June according to the applicant, and that the children remained living with the respondent in the L Town property.

16. The applicant then lived in Melbourne for the next three months, working and returning to L Town to see the children at weekends. The respondent asserts that the weekends were not regular but agrees that the applicant spent two periods each of one week with the children.

1. On 29 August 2019, the applicant wrote to the respondent, proposing mediation and stating, inter alia:

   In the interim, you have no legal right to keep me from seeing the kids. To do so puts your needs and desire to punish me (which is entirely warranted on a PERSONAL level) above the needs of our kids to spend time with their mother. Additionally, there is no reason why I cannot volunteer at the school. No parenting arrangements or orders are in place to restrict my presence at our children’s schools.

   I will collect the children at 5pm Friday as formerly agreed…

2. Notably, the letter appears to contain the applicant’s acquiescence that, at least for the present time, the children should remain living with the respondent. The applicant did not have accommodation for the children and her work was in Melbourne.

3. On 28 October 2019, Ms S, the respondent’s current partner, and her three year old son Z moved into the L Town property and thereafter lived with the respondent and the children.

4. On 4 November 2019, the applicant secured a lease over a house in L Town. 

5. The children holidayed in Country BB with the respondent between 10 January and 22 January 2020.

6. The applicant commenced these proceedings on 18 February 2020.

7. The parenting orders which were sought in the application provided for the applicant to have sole parental responsibility for them, for them to live with her and to spend time with the respondent as agreed or failing agreement each Wednesday afternoon for two hours and each Saturday from 10am until 4pm.

8. The applicant asserts that the respondent limited her access to the children. He denies that assertion.

9. On 27 February 2020, the applicant’s solicitor wrote to the respondent’s solicitor proposing that she collect the children on Friday afternoon and return them to him on Sunday afternoon.

10. In reply, the respondent’s solicitors wrote to the applicant’s solicitors stating:

    We are instructed by our client that in accordance with the parties [sic] established arrangements that the children will spend this weekend with your client. The arrangement is that your client collects the children from our client’s home at 5.00pm on Friday allowing the children to return home from school, do their chores and get ready for the weekend.

    Our client requests that your client return the children to his home at 5.00pm Sunday.

11. The respondent asserts that on 28 February 2020, C telephoned him, upset because the applicant sat the children down and told them about the upcoming proceedings, telling them they had to make up their minds who they wanted to live with.

12. Because the applicant needed to return to Melbourne for work commitments, the children were returned to the respondent’s home at 4pm on Sunday.

13. On 4 March 2020, the respondent’s solicitors wrote to the applicant’s solicitors confirming that contact would occur on the weekend commencing 20 March 2020. The next day this was corrected to state that the weekend would commence on 13 March and confirming that the children would spend alternate weekends with the applicant.

14. The applicant did not spend that weekend with the children because of work commitments. The respondent’s solicitors wrote asking for confirmation that she would spend the weekend of 27 to 29 March with the children. A further letter to that effect was written on 18 March.

15. The parents attended a Case Assessment Conference on 24 March 2020. The day before, the solicitors for the applicant forwarded to the solicitors for the respondent a Minute of Orders which provided for the children to live with each parent on a week about basis commencing with the applicant from 27 March 2020. The Minute also dealt with financial matters including, inter alia, provision of litigation funding by the respondent in the sum of $1,000,000.

16. The respondent did not agree with the applicant’s proposals but agreement was reached in relation to some issues relating to matters such as schooling and passports and to asset preservation.

17. The respondent asserts that the registrar noted the agreement that the children would spend time with the applicant on the weekend of 27 to 29 March.

18. On 26 March 2020, the respondent’s solicitors wrote to the applicant’s solicitors confirming that the children would be in her care from 5pm on 27 March until 5pm on 29 March 2020. The letter referred to the notation made by the registrar.

19. The applicant’s solicitors replied stating:

    The notation made by the Registrar was for her own reference to understand the position between the parties and to “note” it.

    Simple as that.

    It doesn’t have any further or forceful effect…

20. The applicant’s solicitor stated that the time with the children “should not be limited by what the parties advised the Registrar…”

21. I do not accept the contention, if that is intended, that a solicitor acting for a party can advise a registrar, acting in her capacity as a quasi-judicial officer, that they have an agreement and not consider themselves to be bound by that agreement. The solicitor has a duty to the Court above and beyond any obligation to his client and the Court relies on legal representatives not to mislead. The respondent was entitled to rely on the agreement confirmed by the applicant’s solicitor.

22. At 27 March 2020, the children were resident in the respondent’s household and had been so resident, to the exclusion of the applicant since at least 7 June 2019.

23. The children were not returned to the respondent on Sunday 29 March.

24. At 2.26pm on Sunday 29 March the solicitor for the applicant sent an email raising concerns about the presence of tradesmen at the respondent’s residence, asking for undertakings in relation to social distancing and raising concerns about safety in relation to plant and equipment and construction zones. 

25. The applicant, also on Sunday 29 March, laid a complaint with police pressing for the issue of an Apprehended Domestic Violence Order (“ADVO”).

26. The respondent deposed that at 3pm he received a telephone call from B who was distressed and said that her mother told her that she could not leave the house and would not be living with her father again. The respondent went to the police station and was told that the applicant had already been and made a complaint.

27. At 4.58pm on Sunday 29 March (two minutes before the children were to be returned to the respondent) the solicitor for the applicant sent an email to the solicitor for the respondent stating:

    Further to my email today, I note that my client has over the weekend spoken with the Nanny who’s [sic] employment was terminated late last week, namely Ms T. The concerns my client already had for the health, safety and welfare of the children (by reason of what she already knew / the facts and matters deposed to by Ms U in her affidavit), are because of the matters described by Ms T exacerbated. Evidence about those matters will be served in due course.

    Against those matters, and those raised by my email earlier today, our client will not return the children into the care of your client. She has a genuine fear for their wellbeing whilst they are in your client’s residence and exposed to your client. Moreover, given your client’s history of committing family violence, my client has today laid complaint with the local Police pressing for issuance of an Apprehended Domestic Violence Order. I understand that the Police are presently processing the complaint and will make a determination tomorrow. The Police have alerted your client as to the complaint.

    We will correspondence [sic], under separate cover, as to what personal/educational belongings the children will need to have collected from your client’s residence.

28. It is not clear when the affidavit of Ms U was served on the respondent’s solicitors. It was electronically filed at 11.15am on Sunday 29 March. However, it is clear that the affidavit refers to matters which occurred before November 2019 when she ceased employment as the nanny and, since the affidavit was sworn on 24 March 2020, its contents were likely known to the applicant’s solicitor and to the applicant when the registrar was told at the Case Assessment Conference about the agreement that the children would be returned on Sunday at 5pm.

29. On 30 March 2020, the solicitors for the respondent sought the return of the children.

30. On the morning of 30 March 2020, B telephoned the respondent crying. B told her mother that she wanted to go home. The applicant arranged for Mr V, whom she had hired the previous evening, to drive B back to the respondent’s home. Mr V is a licensed security agent who had been retained by the applicant’s solicitor.

31. Later on the afternoon of 30 March 2020, D and C also returned to their father’s care. Whilst the circumstances in which D and C returned to the respondent are in dispute it does not appear to be disputed that the respondent collected them and that they willingly went with him.

32. The police declined to seek an ADVO. The applicant in her affidavit sworn 13  April 2020 deposed:

    The police advised me that they were investigating the complaint and whether charges would be laid against [the respondent], and that they would advise me of the outcome. My impression of the police was that they were too busy with the COVID-19 issues, and didn’t have the resources to attend to me.

33. On 1 April 2020 the applicant sought an ADVO for the protection of herself and the three youngest children. That application is returnable on 6 July 2020. The information she gave in support of that application is different from that in her affidavit. She stated:

    I went to Polcie [sic] for assistance, but after they talked with [the respondent] they adives [sic] me that they woudl [sic] not be taking any action because the last physical altercation was more than 8 months ago.

34. The applicant cited no incidents of violence after 7 June 2019. She stated in the application:

    The six children came to my place last weekend and as there are no Family Law Orders, I decided that they could remain with myself.

35. An interim ADVO was made ex parte on 1 April 2020. I am unable to locate a copy of the Interim Order but I have assumed, having regard to the terms of the application, that the three younger children are named as protected persons.

36. On 3 April 2020, the respondent father filed an Application in a Case seeking the return of the three younger children to his care.

ARE THE CHILDREN AT RISK IN THE RESPONDENT’S CARE?

1. There seems to be no contention made in the applicant’s case that the three older children are at any risk since she seeks an order that they live with him.

2. In her affidavit sworn 13 April 2020, the applicant asserts incidents of family violence up to 7 June 2019. Those assertions are disputed by the respondent and no factual determination can be made here.

3. However, it is clear that the applicant does not assert any further incident of family violence after 7 June 2019 and it is also clear that she was content for the children to continue to live in the respondent’s care until 29 March 2020.

4. It cannot therefore be asserted in the applicant’s case that it is her concerns about family violence that now give rise to an assertion that the children are at risk in the respondent’s care.

5. By her Minute of Orders forwarded to the respondent’s solicitors on 23 March 2020, the applicant proposed that the children live with each parent on a week about basis. It can be inferred that she did not, at that time, have concerns about the respondent’s care of the children.

6. Neither were such concerns apparently expressed either to the registrar or to the respondent in the Case Assessment Conference on 24 March 2020.

7. In her affidavit sworn 13 April 2020, the applicant refers to conversations with a former nanny, Ms U, on 24 March 2020 (whether before or after the Case Assessment Conference is not stated); with Ms W on 29 March 2020 (Ms W was an au pair employed “between late 2019 and early 2020”) and with Ms X on 29 March 2020 (Ms X was the nanny after Ms W left until 27 March 2020.

8. Neither Ms W nor Ms X has sworn an affidavit in the proceedings.

9. Ms U’s affidavit was sworn on 24 March 2020. It is a substantial document of some 12 pages comprising 78 paragraphs. It is unlikely, given that the affidavit was sworn in New Zealand, that the entire process of taking instructions, preparing a draft and having it approved or amended, and having the affidavit sworn, was able to be completed after the Case Assessment Conference had been completed.

10. However, if that were the case, it does not explain why, after the affidavit was sworn on 24 March, it was not filed until 11.15am on Sunday 29 March. If the matters raised by Ms U were of such significance that the knowledge of them prompted the applicant to retain the children, why did she take no action in relation to those concerns during the five days that elapsed?

11. Ms U commenced to work as the nanny in October 2019. She deposed that she worked for both of the parents. She described her hours of work as commencing between 6.30am and 8.00am and finishing at 6.30pm or later. She deposed to working up to 50 hours per week. She was not the only nanny. At times there were two nannies or a nanny and an au pair. From 2019, all six children were at school. While the respondent disputes much of the evidence given by Ms U, and no factual findings can be made, documents annexed to the affidavit of the respondent contradict Ms U’s evidence about some factual matters which she asserts.

12. Whatever concerns are now expressed by Ms U about the respondent’s care of the children, neither she nor the applicant suggests that those concerns were ever shared with the applicant between 7 June 2019 and 24 March 2020.

13. Similarly, it does not appear that, whatever concerns Ms W and Ms X may have had about the children, those concerns were sufficiently serious that either of them related their concerns to the applicant before 29 March 2020.

14. None of Ms U, Ms W or Ms X reported any concerns about the children to the Department of Community and Justice.

15. The applicant does not assert that anything she observed about the physical appearance of the children, or their emotional state, before 27 March 2020, gave rise to concern.

16. The children’s school reports are in evidence and do not suggest that the respective schools have any concerns for the children.

17. Whatever may have been the situation in the respondent’s household leading up to the weekend of 27 March 2020, nothing in the children’s presentation or her conversations with them seems to have given rise to sufficient concern on the part of the applicant that she resiled from her position stated on 23 March 2020 that the children should live on a week about basis with both parents.

18. Why the applicant should have concerns about the welfare of the younger children but be content for the older children to remain living with their father has not been explained and is inconsistent with her having genuine concerns for their welfare.

19. There has been no contact between the children since 30 March 2020. Neither parent has facilitated contact. Both should be criticised for that failure.

20. The Act mandates that the Court give primary consideration to the benefit of the children’s having a meaningful relationship with both parents. If the younger children remain in the care of the applicant, I could not be satisfied that they will have any contact with their father.

21. For the reasons I have set out, I am not satisfied that the asserted risk of harm to the children in the respondent’s household is such that it is either necessary or appropriate that the settled arrangements for their care, which pertained until very recently, should be disturbed.

22. The views of the older three children appear to have been made clear by their return to the care of the respondent. Given that the two older children are aged 14 years and 12 years, those views need to be given some weight.

23. I am not aware of any evidence of the views of the three younger children.

24. The children’s relationship with each other as siblings should not be disrupted.

25. There is no evidence that the children do not have a loving sibling relationship and it is inappropriate that they be separated.

26. The parents live in reasonable proximity in a country town and there is no practical difficulty in the children moving between their households.

27. The children have lived with the respondent since June 2019. They will be returned to his care.

28. The children need to spend time with their mother.

29. The order which the applicant proposes is that the children spend time with the other parent as agreed.

30. There has been no agreement to date which has had the effect of the children spending time with the other parent or each other.

31. Having regard to the applicant’s cavalier attitude to the agreement which was conveyed to the registrar in the Case Assessment Conference, the respondent would not be unreasonably distrustful of her and any agreement she purported to make.

32. The respondent proposes in his response that the children spend time with the applicant on alternate weekends from after school Friday until 5pm on Sunday. In the short term when the applicant is not working because of the current pandemic, that would seem to be appropriate.

33. Having regard to the competing allegations of inappropriate involvement of the children in this dispute, I propose to make orders regulating the involvement of the children by the parents in terms of Order 5 as set out in the applicant’s Case Outline.

SECTION 68P

1. Although I have not been provided with a copy of the Interim ADVO, I have assumed that the protected persons under that order include the three younger children.

2. If that is correct, then the provisions of s 68P of the Act are enlivened because the terms of the orders I will make are inconsistent with the Interim ADVO.

3. The provisions are set out below:

   68PObligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order

   (1)  This section applies if:

   (a) a court:

   (i)  makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or

   (ii)  makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or

   (iii)  grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and

   (b)the order made or injunction granted is inconsistent with an existing family violence order.

   (2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:

   (a)specify in the order or injunction that it is inconsistent with an existing family violence order; and

   (b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

   (c)explain (or arrange for someone else to explain) the order or injunction to:

   (i)  the applicant and respondent in the proceedings for the order or injunction; and

   (ii)  the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

   (iii)  the person protected by the family violence order (if that person is not the applicant or respondent); and

   (d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:

   (i)  the purpose of the order or injunction; and

   (ii)  the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

   (iii)  the consequences that may follow if a person fails to comply with the order or injunction; and

   (iv)  the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and

   (v)  the circumstances in which a person may apply for variation or revocation of the order or injunction.

   (2A)  Subparagraph (2)(c)(iii) does not apply to a child if the court is satisfied that it is in the child’s best interests not to receive an explanation of the order or injunction.

   (2B)  Paragraph (2)(d) does not require inclusion of a matter in an explanation given to a child if the court is satisfied that it is in the child’s best interests for the matter not to be included in the explanation.

   (2C)  In determining whether it is satisfied as described in subsection (2A) or (2B), the court:

   (a)must have regard to all or any of the matters set out in subsection 60CC(2); and

   (b)despite section 60CC, may have regard to all or any of the matters set out in subsection 60CC(3).

   (3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:

   (a)the applicant and respondent in the proceedings for the order or injunction; and

   (b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

   (c)the person protected by the family violence order (if that person is not the applicant or respondent); and

   (d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and

   (e) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and

   (f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.

   (4)Failure to comply with this section does not affect the validity of the order or injunction.

1. The affected children are aged seven years and five years and it is not appropriate that the effect of these orders, or the relationship between these orders and the Interim ADVO be explained to them.

2. The orders will provide for the Registrar to notify the relevant authorities.

MEDIATION

1. No attempt has been made by these parents to resolve their parenting dispute in mediation. They both agree that they should do so and orders will be made accordingly.

FURTHER DIRECTIONS

1. In addition to the parenting dispute, the applicant seeks orders setting aside the Financial Agreement; interim spousal maintenance and litigation funding.

2. An order was made at the Case Assessment Conference for the applicant to file a pleading setting out the basis on which she contends the Financial Agreement should be set aside.

3. On an interim basis, she seeks to prosecute her claim for spousal maintenance.

4. The Financial Agreement at Clauses 27 to 29 contains a provision that, in the event of a final breakdown of the relationship, each party will pay the other $100 by way of maintenance, such payment to be a provision for maintenance for the purpose of s90E and 90UH of the Act.

5. The applicant contends that those provisions do not oust the jurisdiction of the court in relation to spousal maintenance. The applicant’s submissions in relation to that issue are set out in the Case Outline dated 14 April 2020 at paragraphs 47 to 52.

6. The respondent contends that the jurisdiction is ousted. The parties have agreed that the respondent will file written submissions in relation to that issue and the applicant will file in reply.

7. Since the application for litigation funding is made on the basis of s117 (2A) of the Act, the respective financial positions of the parties must be considered and the respondent will be directed to file a Financial Statement.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 April 2020.

Associate: 

Date:  21/04/2020