Xiu and Hodges

[2017] FamCA 608

FAMILY COURT OF AUSTRALIA

XIU & HODGES [2017] FamCA 608

FAMILY LAW – Procedural – leave to mother to institute contravention proceedings – concern about multiple return dates

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hamilton

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Mr Barton

SOLICITOR FOR THE RESPONDENT: MDL Law

Orders

IT IS ORDERED THAT:

1. Paragraph 1 of the wife’s Application in a Case filed 1 June 2017 be granted and the wife have leave to proceed with her contravention application referred to therein (“the wife’s contravention application”).

2. The wife’s contravention application be adjourned to the Judicial Duty List on 5 September 2017 at 10.00 am to be heard at the same time as the husband’s contravention application filed 13 July 2017 (in respect of which leave was previously sought and obtained).

3. In relation to the wife’s Initiating Application filed 23 June 2017, which is returnable before Registrar Field on 9 August 2017 at 10.30 am (“the adjourned date”), and pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child K born … 2002 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date.

4. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5. That my Associate forthwith provide to the independent children’s lawyer copies of all relevant documents and the parties provide any further documents on or after the adjourned date.

6. By not later than 12.00 noon on Thursday 3 August 2017 the husband make file and serve a Response to the Initiating Application together with an affidavit of any interim and procedural matters which he wishes to raise including any points taken in relation to insufficient new circumstances having arisen since the final hearing before the Honourable Justice Dessau in 2013.

7. Until further order, each party is at liberty to cause subpoena(s) to issue in relation to the parenting proceedings and also in relation to the contravention proceedings.

8. Any queries in relation to subpoenas to be issued pursuant to the preceding paragraph may be referred by the Case Coordinator or Client Service Staff to my Chambers NOTING THAT any person wishing to file a subpoena should attend Court with a sealed copy of this Order.

9. My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy be provided to the parties.

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 Xiu & Hodges (No. 3) 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 MELBOURNE

FILE NUMBER: MLC 6222 of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the judicial duty list.  It was previously listed before Thornton J on 23 June 2017, when her Honour granted the husband leave to file a contravention application and the mother leave to proceed with her proposed application initiating proceedings seeking parenting orders.  The mother’s application for leave to institute contravention proceedings against the father was put over to today. Going forward, we seem to have the potential for a multiplicity of return and adjourned dates.

2. Leave is necessary because, on 14 February 2013 Dessau J (as she then was) made final parenting orders, which provided in paragraph 25 “that each party is hereby restrained from filing any application under the Family Law Act 1975 (Cth) without first obtaining leave of a judicial officer”. I am informed by counsel that that Order has not been appealed or set aside.

3. At that point the child K was approximately 11 years old.  His parents had been in the court system since 2008.  He is the parents’ only child.  He suffers from a severe global disability and is largely nonverbal.  The mother is 54 years old.  The father is 49 years old.  Neither are employed outside the home. The parents lived together from June 1996. They married in 1996 and were divorced on 26 June 2006.

4. There has been an intractable conflict between the parties evidenced by there being 10 folios of court documents. 

5. Notably at paragraphs 36 to 39 of her Honour’s reasons for judgment on 14 February 2013 her Honour made the following comments:

   36.      The first is that there must be a stop to this endless litigation and it is very hard for me to feel confident that it will occur.  I am concerned that there is a mindset in this family that the court is the place of first resort when there is an issue with [K]. 

   37.      There will always be contentious issues in parenting children even when parents remain together, but certainly when they separate, there are bound to be more complications.  With the degree of care that each parent needs to give [K], the complications here are more profound.  But if they rush to court each time there is an issue, then their energy and money and time is diverted. 

   38.      A very poignant piece of evidence I heard was that the parents have sometimes cooperated well, in the context of swapping [K], when one or the other is working on their affidavit for court.  I am not sure the parents could see the irony in that, but it certainly was not lost on me. 

   39.      I will make an order restraining each parent from returning to court without leave of a judge.  I am concerned that they must not misinterpret that order, to think that it simply means, “So each time we go to court we just get leave of the judge first”.  The idea is that the court will be closed off to them, unless there is a genuinely new and serious issue that only a court can address. [And then please for the purpose of the transcript insert paragraphs 36 to 39 of the reasons.] 

6. Today, after hearing a thumbnail sketch of the wife’s application for leave, counsel for the father sought that the matter be stood down to get instructions and then returned to court saying that his client did not oppose leave being given for the mother to file a contravention application.  That was a very sensible course, in my view.  It is apparent that the wife will rely on the facts and matters which are integral to her contravention proceeding to attempt to satisfy the court on the hearing of the father’s contravention application that she had a reasonable excuse for not complying with the extant orders for the father to spend time with K.  In her own contravention application the wife now alleges that the father has on five occasions taken the child to school late. 

7. The current care arrangements for K are those provided for in Dessau Js order of 2013.  K lives with the father from Wednesday after school until Saturday evening and with the mother from Saturday evening until the Wednesday before school, 12 noon on Wednesday.  K is attending Y School as well as PP School.  When K is with the father the father home-schools K on one day per week.  That is contemplated by paragraph 33 of her Honour’s orders.  Otherwise her Honour’s orders provide that the mother will have sole parental responsibility in relation to matters of K’s education and that the father have responsibility for matters relating to K’s health. 

8. One of the matters that the mother seeks be addressed in her application initiating proceedings is that the father do all acts and things necessary to ensure that K is appropriately immunised and vaccinated.  I have heard that that will not necessarily be a straightforward procedure, but in terms of the contraction of disease and – for K and the community in general – it is something that the wife says needs to be done and the husband at the moment opposes being done.  As noted, the father has sole parental responsibility for health matters. The matters of which the mother otherwise complains in her contravention application is that the father delivers the child to school late on the one day per week that he’s required to take K to school and that the father has without reasonable excuse not taken the child to school on occasion.

9. The mother complains that the father refuses to attend change-over in accordance with the orders of 14 February 2013, which require him to return the child to the mother at her home.  Instead the father is alleged to have said that he will meet the mother at a railway station or a police station.  The mother alleges that the father has overheld the child on three occasions and also that the father has taken the child to a club, contrary to the recommendation of allied health professionals that he not do so. 

10. It is obviously a case of very high parental conflict.  It is a case that probably does not benefit from numerous adjournments.  Not only is it taxing for the parties in economic terms, it must be taxing in emotional terms.  It diverts their attention from the care of K, who requires care at a very high, consistent and unremitting standard.  Also, K is about to enter the last phase of his secondary schooling.  At the moment the parents are pulling in different directions.  The father favours home schooling. The mother sees an opportunity for K to have a more regular and socialised educational experience at PP School. As noted, the mother has sole parental responsibility for educational matters. It appears that K has reached the late part in his education where the parents’ different perspectives cannot be accommodated. The mutual applications for contravention are emblematic of the fact that the parties cannot agree and that neither will alter their position. On a larger scale, K’s educational issues should be resolved this year so they can be implemented in 2018.

11. I am concerned about the number of adjourn dates and return dates in this Court.  Accordingly I have adjourned the mother’s contravention application to the same day as the father’s contravention application.  It seems to me that both have a lot of evidence in common, and to do otherwise would mean that the evidence could be duplicated and time and costs thereby wasted.  The contraventions should be gotten out of the way as soon as possible.

12. The mother’s application initiating proceedings has been adjourned by Thornton J to 9 August 2017 at 10.30 am before Registrar Field. I am satisfied that an independent children’s lawyer is required.  The mother seeks sole parental responsibility over health and education and for the father’s time to be during non-school hours.

RECORDED  :  NOT TRANSCRIBED

1. I suppose that is the first day of hearing before a registrar.  In the proceedings concluded before Dessau J the independent children’s lawyer was from Barbayannis and Co.  Given the effluxion of time and given that K may have the intellectual capacity of a six- or seven-year-old (although formally not assessed nor a matter on which the parties agree), I see no difficulty in changing an independent children’s lawyer at this point if the same practitioner is no longer available or available within the short time frame before the listing before Registrar Field.  This might be a matter which Victoria Legal Aid might find it appropriate to assign to an internal independent children’s lawyer. 

2. I note that Thornton J adjourned the father’s contravention application to 5 September 2017.  That is a day on which both her Honour and myself are assisting in the duty list.  If her Honour or the list judge does not mind or there is a risk that both contravention proceedings will not be reached, I will take the contravention applications on that day and accord them priority amongst other matters with which I deal. The contravention proceedings should not distract the parents from the essential duty of parenting but, it does appear, that determination of the contravention applications may quell a number of everyday conflicts and disputes which currently plague the parents and K.

3. If I am going to deal with the contraventions it would be fair to all concerned (including parties in other matters before the Court) that I have the file in sufficient time to read the affidavits referrable to the contraventions before the hearing day.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 August 2017.

Associate: 

Date:  7 August 2017