Xiu and Hodges

[2012] FamCA 865

FAMILY COURT OF AUSTRALIA

XIU & HODGES [2012] FamCA 865

FAMILY LAW – Withdrawal of contravention applications

APPLICANT: Ms Xiu

RESPONDENT: Mr Hodges

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 13 September 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 13 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Baume

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Barbayannis Lawyers

Orders

1. That the husband shall be granted leave to withdraw his Contravention Application filed 28 January 2012.

2. That the wife shall be granted leave to withdraw her Contravention Application filed 24 February 2012.

3. That pursuant to s 68Q(1) of the Family Law Act to the extent that paragraphs 5 and 6 of the Family Violence Order made on 14 May 2012 is inconsistent with paragraphs 4 and 4A of the orders made on 8 June 2011 in the Family Court, the family violence order is invalid, and the ICL shall ensure that a copy of these orders shall be forwarded to the Registrar of the Moorabbin Justice Centre and the County Court of Victoria.

4. That the wife’s Amended Application filed 31 August 2012 shall be adjourned for final hearing at 10.00am on 11 February 2013 for five days before me.

5. That the husband shall file a Response on or before 4.00pm on 27 September 2012.

6. That the husband and the wife shall attend upon such psychiatrist as may be nominated by the ICL for the purpose of a psychiatric assessment and report on each of them, and for that purpose the ICL shall provide the psychiatrist a copy of my Reasons for Judgment of 8 June 2011.

7. That being satisfied this day of new facts and circumstances in the parenting case, the issues to be determined at trial shall be limited to:

   (a)The relationship between the parties since 8 June 2011;

   (b)The compliance by the husband and wife with the orders of 8 June 2011;

   (c)The progress of K at school and the capacity of the school and the doctors to work with the parents, such witnesses to be limited to the nominated person from the school, Dr M and Dr G;

   (d)K’s attendance at extra-curricular events and important school events on any day of the week and on weekends;

   (e)Each of the parent’s psychiatric condition; and

   (f)Whether K has been or is being exposed to any new physical risks since 8 June 20-11.

8. That each parent shall file and serve one trial affidavit respectively and any other witness affidavits upon which they seek to rely addressing the issues referred to in paragraph 7 hereof, on or before 11 January 2013.

9. That the parties shall make themselves available for a telephone mention before Registrar Field on a date to be advised by the Registrar, and to be held as soon as possible after 11 January 2013.

10. That by 4.00pm on 4 February 2013 each party shall file and serve a Minute of Final Orders sought and in addition the ICL shall prepare a Case Summary by 4.00pm on 4 February 2013.

11. That leave shall be granted to the ICL to file subpoenas to produce documents and give evidence.

12. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

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

14. That Victoria Legal Aid is requested to favourably consider legal aid funding for each parent as the case involves extremely complex dynamics and issues in relation to a child with profound health and developmental needs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xiu & Hodges 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 6222 of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

REASONS FOR JUDGMENT

1. Sadly, this matter has come back before me again, despite the fact that I made final parenting orders in June 2007, when K was five, and that was after a long defended hearing and long reasons given by me.  I then made further final orders in June 2011, when the child was nine, and again that was after a very lengthy hearing.

2. Sadly, it was not long before the matter was back in Court. 

3. This round of proceedings started with a contravention application filed by the father on 27 January 2012, followed by the mother’s contravention application filed on 24 February 2012, followed then by her application to vary the final orders.  That application was filed on 4 June 2012.  She filed an amended initiating application on 31 August 2012, together with a Notice of Child Abuse on that same date. 

4. Mr Hodges filed an affidavit in support of his Contravention Application on 27 January 2012.

5. Ms Xiu filed two affidavits in support of her Contravention Application, one on 24 February 2012, one on 7 June 2012.  She filed a responding affidavit to the Contravention Application of the father on 13 March 2012, and she filed an affidavit in support of her Application to vary the orders on 4 June.

6. Today, Mr Hodges is wanting to file an affidavit in response to the initiating application proceedings.  I shall give leave for that affidavit to be filed but unfortunately, that affidavit was only served this morning on Ms Xiu, who remains is herself, and on Ms Boymal, counsel for the Independent Children's Lawyer. 

7. Mr Baume represents Mr Hodges today.  Between Mr Baume, Ms Boymal and Ms Xiu, there have been discussions this morning.  The parties have reached an agreement to withdraw their contravention applications today.  The ICL raised a suggestion of each party making an undertaking to the Court that they would properly follow the existing Court orders.  I made it clear that I did not favour that course. I think it muddies what are very clear waters: there are Court orders and they must be complied with.

8. What that brief history as to the proceedings since the last parenting orders does not contain, is reference to the parallel proceedings in the Magistrates Court.  Ms Xiu brought intervention order proceedings against Mr Hodges.  In mid-May this year, the parties consented to intervention orders to last for five years.  In part of the orders there was a reference to Mr Hodges not attending medical appointments with Ms Xiu and K.  That was contrary to my orders of 8 June 2011.  The Magistrate acknowledged that it was a matter that would come back before me, I do propose dealing with that today.  I will come back to that in a moment, after I have completed the history of the intervention order proceedings. 

9. I am told that Mr Hodges is now appealing the intervention orders, even though the orders appear to have been by consent.  His appeal is due to be heard in November in the County Court.

10. I am also told that Mr Hodges has been charged with a breach of the proceedings, arising from an incident in January 2012, when the police were called at what was to be a changeover of K.  That changeover ultimately did not occur.  That was part of the basis for Mr Hodges’s contravention proceedings.

11. Finally I am told that Mr Hodges himself has now filed an application in the Magistrates Court for an intervention order against Ms Xiu, and that is due to be dealt with on 15 October 2012. 

12. The parties have asked me to deal with the issue of whether or not Mr Hodges can, in the interim at least, until the matter is otherwise resolved, continue to attend medical appointments as envisaged under my last orders.

13. It is a difficult issue in the sense that the child must not be subjected to the stress of any acrimony between his parents in that setting and, needless to say, the doctors must be free to do their professional work without any fighting.  If I had any independent evidence at all that any doctor has been unable to work in that context, then I would have no choice at all but to ensure that only one parent attends.  However, on the material before me today, I do not have that independent evidence. 

14. I have the mother telling me that it has been very difficult and that one of the doctors, Dr M the paediatrician, told her that she was not happy dealing with both parents.  And I have Mr Hodges, through his counsel, telling me that it will be clear from his material that I have not yet seen, that there has not been a difficulty in front of the doctors.

15. So without any independent evidence from the doctors, that is not something I am going to buy into now, except to say that it means my previous orders should stand, and an order needs to be made today to ensure that the intervention order made by Magistrate Goldsborough should not interfere with my orders. 

16. That left me then with the issue as to how the rest of the case should proceed.  Mr Baume for Mr Hodges was arguing, essentially, that there is no new fact and circumstance in this case, and that therefore the current orders should stand.  The ICL said there are clearly new facts and circumstances and to that extent, supports the mother when she says that there are new facts and circumstances that need to be determined by the Court.

17. Although extremely tempting to take the approach that this matter has received an inordinately large amount of Court time, has taken up a huge amount of Court and community resources and has, without doubt, exhausted the parties’ financial and personal resources as well – resources that I am conscious are dearly needed for the child’s complex care – unfortunately, the matter is not that simple.  I am particularly concerned that rather than this just being – to use the colloquial expression – “more of the same”, the difficulties between the parties have in fact escalated.

18. When I first heard this case, I noted in my judgment the high level of cooperation between the parties.  When I next heard the case, I noticed the significant polarisation between the parties that had developed but that still, there was cooperation on some levels.  Any sense of violence or threat between the parties has never been a significant part of this case and the fact that each parent has now seen their way clear to bring intervention order proceedings against the other is a new and very serious element that impacts directly on the child’s care.

19. It impacts on the child’s care either because there has been violence or threats in one direction or the other, or both, or because one or both of the parties are alleging that, even if it is not the case.

20. Either way, there is a serious impact.  I am concerned too that ongoing issues, apparently about medical matters, will need to be resolved in the event that there is such a gulf in the two different accounts as to whether or not the medical process has been proceeding in a seamless way and in the way that is in the child’s best interests. 

21. I propose pausing briefly to ascertain how this matter can best be listed as quickly as possible, whether that is in front of me or another judge, to simply determine the new matters.

22. I know that I have been involved for a very long time, but I have said clearly to the parties that if another judge is able to hear it sooner, not only do I think that is appropriate, but it might also be helpful to have that fresh view of the case.  But let me just see what the potential listing arrangements are.

RECORDED  :  NOT TRANSCRIBED

1. I will now make orders in accordance with the Minutes dated today’s date.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 13 September 2012.

Associate:

Date:  13 September 2012