WYLIE & FALCONER (No.2)

[2019] FCCA 2892

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYLIE & FALCONER (No.2) [2019] FCCA 2892

Catchwords:
FAMILY LAW – Parenting – interim orders – where allegations of assault by father were investigated – where assault was an isolated incident and not child not found at risk – where children ordered to live with mother – where mother suffers from mental health issues and was involuntarily admitted –best interests of the children – children live with father until further orders.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS WYLIE

Respondent: MR FALCONER

File Number: DNC 457 of 2015

Judgment of: Judge Young

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Darwin

Delivered on: 10 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Wynd

Solicitors for the Applicant: Infinity Legal

Counsel for the Respondent: Ms Palavra

Solicitors for the Respondent: Northern Territory Legal Aid Commission

ORDERS UNTIL FURTHER ORDER

1. That the children X born … 2009 and Y born … 2010 (“the children”) live with the father.

2. That the children spend time with the mother:

   (a)Each Wednesday from 2:45pm to 7:00pm; and

   (b)Each alternate weekend from after school Friday to Sunday at 5:00pm.

3. That exchange shall be at the children’s school if open, Suburb A McDonalds or at their football games.

4. That all usual arrangements are suspended for the purposes of the following special occasions:

   (a)Children’s Birthdays:

   (i)If one of the children’s birthdays falls on a school day, the children will both spend time with the parent with whom they would not otherwise be spending time with in accordance with their usual schedule from the conclusion of school until 5:00pm.

   (ii)If one of the children’s birthdays falls on a non-school day, the children shall spend time with the parent with whom they would not otherwise be spending time with in accordance with their usual schedule for a period of 4 hours from 1:00pm until 5:00pm.

   (b)Parent’s Birthdays:

   (i)If a parent’s birthday falls on a school day, the children shall spend time with the celebrating parent from the conclusion of school until 7:00pm.

   (ii)If a parent’s birthday falls on a non-school day, they shall spend time with the celebrating parent with whom they would not otherwise be spending time with in accordance with their usual schedule for a period of four hours from 1:00pm until 5:00pm.

5. That each party shall ensure that the children’s school uniforms, bags, lunch boxes, shoes, changes of clothing and any communication books are sent to the children’s school or relevant location at changeover.

6. That both parties are at liberty to attend the children’s school, sporting or extra-curricular activities to which parents are normally invited or able to attend.

7. That these Orders shall, without more, act as authority to the children’s school to consult with each parent and provide each parent (at the requesting parent’s expense) information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents.

8. That the mother shall provide to the father’s solicitor a letter from her treating mental health professional upon providing 14 days notice.

9. That both parties be restrained from discussing these proceedings or their living arrangements in the presence or hearing of the children and both parties are to use their best endeavours to ensure that others do not discuss these proceedings in the hearing or presence of the children.

10. That, upon the release of the Family Report, the parties do all things necessary to have the matter assessed for a Family Law Conference at the Northern Territory Legal Aid Commission, and, if assessed as suitable, attend a Family Law Conference at the Northern Territory Legal Aid Commission.

AND IT IS NOTED:

That the mother shall continue to attend upon her treating psychologist pursuant to her mental health treatment plan.

AND IT IS ORDERED:

1. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born … 2009 and Y born … 2010 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

2. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

4. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

5. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born … 2009 and Y born … 2010 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by mid December 2019.

6. That the family report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

7. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

8. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

9. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

    NOTING:

    A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

    B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 20 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

11. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

12. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

13. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

14. That the matter is listed for trial on 11 and 12 June 2020 at 10.00am (allowing 2 days).

15. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

16. That on or before 28 days prior to trial the applicant pay the setting down fee and such should the matter continue to day 3 and the respondent pay such daily hearing fee further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

17. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

    (a)a list of the material relied upon;

    (b)a brief chronology listing significant events;

    (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

    (d)a list of other contentions relevant to the decision;

    (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

    (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

    (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

    (h)the actual orders sought.

18. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

19. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

20. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

21. That the matter be adjourned to 10 February 2020 at 11.00am for mention NOTING that the parties will be expected to address the Rice & Asplund criteria with a view to identifying the issues for trial on that date.

THE COURT NOTES THAT:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Wylie & Falconer (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 457 of 2015

MS WYLIE

Applicant

And

MR FALCONER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning X and Y who are 10 and eight respectively. At the end of a trial in 2016 I made orders that the children live with the mother and spend five nights a fortnight with the father. There were two particular issues that I recall from the trial.

3. One was allegations against the father of effectively assault against one of the mother’s older children from a previous relationship and I concluded that there was some substance in that, particularly as the child had reported it himself.

4. The issue of the father’s tendency to be excessively physical with children has arisen again. That issue has been investigated and coupled with an allegation against the father’s partner, Ms B, but the particular allegation that was of concern was that the father had slapped Y. Territory Families investigated and found that what was alleged actually occurred but was an isolated incident and the child was not found to have suffered any particular harm.

5. However, in the process of the involvement of Territory Families which began in April 2019 there was also an investigation of a claim that the mother had inappropriately exposed the children to, broadly speaking, the conflict between herself and the father involving criticism and denigration of the father, discussion of issues between them and the like. That investigation substantiated a finding of emotional abuse by the mother against the two children in the way that I have just explained.

6. The second issue is that the mother suffered a relapse of her bipolar disorder in April of this year and was hospitalised in a psychiatric ward at Royal Darwin Hospital for three weeks as an involuntary patient. The mother, when she is well, is, it would appear, a perfectly capable parent. When she experiences a relapse of her bipolar disorder, as occurred in April 2019, the consequences are catastrophic for her and deeply troubling for the children. Thus, it appears that the children, not surprisingly, are deeply concerned about their mother. As a result of that episode, orders were made in April suspending the existing orders and making an order that the children spend day time with their mother under the substantial supervision of the maternal grandmother.

7. A child inclusive report was also ordered in May. The report refers to the allegations of excessive discipline, if I can put it that way: that Ms B had dragged Y out of bed and Mr Falconer had slapped Y’s face twice. As I say, that was investigated and while the slapping was found to have actually occurred, there was no substantiation of child abuse arising from it. The child inclusive report essentially focuses on the experience of the children and after noting that the conflict between the parents was intense, though apparently the family consultant seemed to form the view that Mr Falconer was less enmeshed, if I can put it that way, observed that the father was perfectly happy for the children to have a relationship with their mother and, indeed, thought that was necessary.

8. The mother, according to the family consultant at least, gave the “impression that she felt angry, mistrusting and resentful towards Mr Falconer,” as she perceived that he had unilaterally taken the children from her in breach of court orders without good reason. She also said that she felt “intimidated by him, perceiving that Mr Falconer is behaving in a controlling manner.”

9. If correct, it is of some concern that Ms Wylie considered that the court orders of May were made without good reason. There was very clear evidence at that point that the mother had been incapable of caring for these children adequately at least for a period. That’s why the orders were made. It suggests, if correct, a certain lack of insight into one of the fundamental issues in this case, if not the fundamental issue. The children when spoken to by the family consultant said, essentially, that “Y said that she was happy in her father’s home and she got on well with Ms B.  She really had no complaints.”

10. Y did not want to say anything that might upset her mother and was concerned about speaking to the writer. Y, in substance, had not made complaints about her present living arrangement, subject to the interim orders, in the household of her father and Ms B. X said that he enjoyed living in his father’s home, particularly because his older siblings are there and, as I understand the evidence, one of the mother’s other children, not Mr Falconer’s child, has move into Mr Falconer’s household.

11. To correct that, I am told that, in fact, both Ms Wylie’s older children from an earlier relationship, who are older than the subject children, have moved into Mr Falconer’s household. This is clearly an aspect that is relevant to X’s apparent comfort living in that household. X did say, however, that he wanted to return to sleeping over at his mother’s again and I think it is obvious, from everything that X, and Y for that matter, have a good relationship with their mother and are, not surprisingly, very concerned about her.

12. Counsel for the mother simply said that there ought to be a return to the existing orders. That was not consistent with the recommendations of the family consultant. It was submitted by Ms Palavra that the family consultant had made her recommendations in ignorance of some fundamental matters. I wasn’t taken to those so I’m not entirely sure what was being referred to but I gather the Territory Families investigation was being referred to. The recommendation of the family consultant was not that there be a return to the existing orders but that the children remain in their father’s primary care, which is a change in care arrangements, and recommence spending limited unsupervised overnight time with their mother with a view to gradually increasing the time as it became apparent that the mother was adhering to her mental health plan.

13. At the moment, I do not know precisely how Ms Wylie is progressing with her mental health plan. I am told that she is compliant with her medication regime and is otherwise compliant with the therapeutic recommendations that she has received. I have no reason to doubt that at the moment. As Ms Wylie is a health care worker, I have no doubt that once she recovers, as she has done, from her relapse in April that she would have enough insight to realise the importance of compliance with her regime of medication and care.

14. However, there has been a very significant upset in the arrangements for these children arising out of their mother’s involuntary admission in April. They have been living with their father. There has been a substantiation of emotional harm by Ms Wylie against these children and in all those circumstances, and particularly as in both cases the children say they feel safe and supported in their father’s care, I think that there ought to be a reasonably conservative approach adopted.

15. The secondary position that was adopted by counsel for the mother in submissions was that the children should spend Friday through to Sunday afternoon alternate weekends and also Wednesday afternoon, as per the present orders, with their mother pending some further investigation of the issues. I agree that is an appropriate arrangement, at least in the interim, and I propose to make orders in those terms.

1. I also propose to make an order for the preparation of a family report, which will be released at the end of December, and for the appointment of an independent children’s lawyer.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     10 October 2019