Ye & Cai (No 5)
[2022] FedCFamC1F 721
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ye & Cai (No 5) [2022] FedCFamC1F 721
File number(s): CAC 1379 of 2021 Judgment of: CAMPTON J Date of judgment: 21 September 2022 Catchwords: FAMILY LAW – Application for Review – Interim parenting proceedings. Legislation: Family Law Act 1975 (Cth) Pt VII, XIIIA, ss 60CA, 60CC, 65D, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 14.3, rr 3.01, 6.06, 1.04, 14.07
Cases cited: Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC
Ebner & Pappas [2014] FLC 93-619; [2014] FamCAFC 229
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386
Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223
Kioa v West [1995] 159 CLR 550; [1985] HCA 81
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Salah & Salah [2016] FLC 93-713; [2016] FamCAFC 100
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Wayne & Dillon & Anor [2008] FamCAFC 204
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Ye & Cai (No 3) [2022] FedCFamC1F 477
Division: Division 1 First Instance Number of paragraphs: 114 Date of hearing: 19 September 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person Solicitor for the Second Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Parker Coles Curtis ORDERS
CAC 1379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YE
Applicant
AND: MR CAI
First Respondent
MS ZEXI
Second RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
19 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Orders 17 and 18 made on 1 July 2022 are discharged.
2.The paternal grandmother’s Application for Review filed on 8 July 2022 is dismissed.
3.The time for the paternal grandmother to comply with Order 3 made on 19 July 2021 is extended to 29 September 2022.
4.On or before 4.00 pm on 29 September 2022, the paternal grandmother shall file and serve a Financial Statement.
5.On or before 4.00 pm on 5 October 2022, the mother shall file and serve any Amended Initiating Application setting out with particularity:
(a)the final orders she seeks as to parenting and property adjustment; and
(b)any orders she seeks as against the paternal grandmother on both a final and interim basis.
6.In the event the mother seeks interim relief as against the paternal grandmother by way of her Amended Initiating Application filed in compliance with Order 5(b) above, such interim relief be listed for case management before Gill J on 7 October 2022.
7.On or before 4.00 pm on 6 October 2022, the paternal grandmother shall file and serve any Application in a Proceeding as she may be advised at her risk as to costs, seeking to discharge Orders 2 and 3 made on 19 July 2021 and to be removed as a party to the proceedings.
8.In the event the paternal grandmother files an Application in a Proceeding in compliance with Order 7, such Application in a Proceeding shall be listed for case management before Gill J on 7 October 2022.
9.The relief as sought in paragraphs 2 to 10 inclusive and 16 to 21 of the father’s Application for Review filed on 12 July 2022 are dismissed, noting that they are preserved for prosecution by the father in his further Application in a Proceeding filed on 12 July 2022, which is presently listed before directions before Gill J on 7 October 2022.
10.The father’s Application for Review filed on 12 July 2022 is otherwise dismissed.
11.The relief as sought in paragraphs 1, 11 – 15 inclusive and 22 – 25 inclusive of the father’s Application in a Proceeding filed on 12 July 2022 is dismissed.
AND THE COURT NOTES THAT:
A.The parties have been directed to the contents of paragraph 5.22 of the Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction (“the Central Practice Direction”), such that other than in urgent circumstances relating to issues of high risk, the parties must obtain leave of the Court to file any Application in a Proceeding seeking interlocutory relief, such leave application to be determined by a judicial registrar in chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ye & Cai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Introduction
Mr Cai (“the father”) and Ms Ye (“the mother”) were engaged in a defended interim hearing as to the parenting of their children, X, born in 2018 and Y, born in 2020 (collectively, “the children”). The second respondent in the proceedings, Ms Zexi (“the paternal grandmother”) also participated to a limited extent in that hearing.
The orders made by the senior judicial registrar at the conclusion of that hearing on 1 July 2022 were as follows:
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The children [X, born in 2018] and [Y, born in 2020] (‘the children’) live with the Applicant mother.
2.The First Respondent father shall spend time with the children, professionally supervised, either:
a. each fortnight for two hours on a day to be nominated by the father; or
b. each week for 1 hour on a day to be nominated by the father.
IT IS NOTED THAT the time in Order 2 shall depend on what time and frequency the supervised contact centre is able to accommodate for the parties, including the provision of an interpreter to attend if required.
3.Both parties shall forthwith contact the [C Centre] to participate in an intake assessment for the provision of supervised time between the children and the father.
4.That the parties shall do all things necessary to obtain reports following each supervised visit with the costs of same to be paid by the father, and in the event that the father is unable to meet the cost of those reports, then as able to be funded through the […] Legal Aid Commission via the Independent Children’s Lawyer.
5.The mother shall facilitate the father having video calls with the children once per week with the day and time for the video call to be nominated by the mother.
6.The father shall forthwith enrol in, and thereafter participate and complete the ‘Circle of Security’ parenting course.
7.Forthwith the parties shall enrol in, and separately participate in, a post-separation parenting course through the [C Centre].
8.The Second Respondent paternal grandmother is at liberty to participate in the supervised contact sessions with the First Respondent father as agreed between her and the father.
9.The father shall attend upon a clinical psychologist to be agreed between the parties and failing agreement with the father to select from a list of 3 psychologists nominated by the ICL, for the purposes preparing a report about and assessment of the father’s mental health.
10.The Court requests that the Independent Children’s Lawyer make an urgent application for funding through the […] Legal Aid Commission for the preparation of the clinical psychologist’s report.
Family Dispute Resolution
11.Pursuant to s 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
a.Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
b.Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in Order 11(a).
12.The matter shall be referred to the Executive Director Dispute Resolution for allocation and listing of the FDR Conference dates.
13.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
14.Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
a.ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
b.ensure that any private expert report that is relevant to the proceedings has been filed;
c.provide to the Court by email and to the other party a single collated bundle of documents comprising:
i.a Confidential Outline of Case (Dispute Resolution);
ii.a detailed minute of Orders Sought;
iii.details of any previous or current family violence orders; and
iv.a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
15.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
16.The Registrar may vacate the FDR Conference in the event:
a.of non-attendance by either party at Part 1 of the Conference; or
b.that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Listed for hearing before me on Monday of this week, 19 September 2022, were:
(a)An Application for Review filed by the paternal grandmother on 8 July 2022 of the exercise of delegated power of a senior judicial registrar in making all orders on 1 July 2022 (“the paternal grandmother’s Application for Review”); and
(b)An Application for Review filed by the father on 12 July 2022 of the exercise of delegated power of a senior judicial registrar in making all orders on 1 July 2022 (“the father’s Application for Review”).
The paternal grandmother engaged in the hearing before me with the benefit of a Country B language interpreter. She cannot read or write English. Her English language skills are very limited.
The relief sought by the paternal grandmother on review was:
1.The children [X] born [2018] and [Y] born [2020] (‘the children’) live with the paternal grandmother [Ms Zexi].
2.Father shall spend time with the children on every 4th Sunday for 4 hours without professional supervision and reporting.
3.Private expert from [Country B] or outside Australia regarding gift revocation should not be used and admissible in the Court.
4.Paternal grandmother is discharged as a party to the financial aspects of these proceedings but is still a party to the pareting aspects of these proceeding.
5.[Ms Ye's] father [Mr E] and mother [Ms F] are joined as a party to the financial aspects of these proceedings.
6.[Ms F] and [Mr E] return two properties and motor vehicle in [City G] to [Ms Ye] within 14 days of the date of these orders
7.[Ms F] and [Mr E] file and serve within 14 days of the date of these Orders, a Response, Financial Statement and an Affidavit and any other documents required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in respect to the financial aspect of these proceedings, setting out with particularity the Orders that she seeks and the evidence that she relies on.
8.Subpoena [Ms F's] entry records into Australia in 2019 with Australian borders
9.Excuse [the SJR] from CAC1379/2021
10. Remove [Ms Ye's] solicitor [Ms H].
A number the orders sought by the paternal grandmother on review were not the subject of matters listed before and determined by the senior judicial registrar on 1 July 2022. On that date the paternal grandmother did not seek any parenting orders or orders as to the financial proceedings. During the course of that hearing event she requested that she be removed as a party to the proceedings.
The paternal grandmother said during the review hearing that she did not seek any orders to the parenting of the children at all, let alone orders that they live with her. She pressed for the mother’s parents to be joined as parties to the proceedings, although she did not articulate the evidentiary foundation grounding that application nor explain why she had an interest in such an order being made, and that she be removed as a party. She did not press for any other relief as sought in her Application for Review. She said that she supported her son, the father, in his parenting relief as sought.
During the course of the review hearing, the father and the paternal grandmother spoke to each other in Country B. I directed that those exchanges cease on a number of occasions. This conduct made the task of the Country B interpreter more difficult than it ought to have been. A reading of the transcripts of previous hearings which were in evidence before me, including that on 29 July 2021 before Hughes J and on 1 July 2022 before the senior judicial registrar, records that this conduct has been a repeated and persistent feature of these proceedings to date.
The relief sought by the respondent father on review was:
1.Set aside all the orders made on 1 July 2022 by [the SJR]
2.[Ms Ye] must provide bank statements since June 2021 to the dates of these orders show child support she receceives from me via CSA
3.[Ms Ye] must provide bank statements show that she pays weekly rent of $148. [Ms Ye] must provide bank statements since July 2021 to the dates of these orders show that she repays $30 a week to her mother [Ms F] for the personal loan
4.[Ms Ye] must provice evidence as to where the proceeds of salr of [Suburb J] property she has received [Country B Currency] ($150,000) is.
5.That within 14 days, the [Ms Ye] shall:
(i) Do all things and sign all documents necessary to cause the transfer of her 1/3 share in the property at [K Property, Suburb J, City G, Country B] (“the [K Property]”) to her father [Mr E], which was lodged 7 August 2021 and accepted [in mid-2021] by the [City G] Municipality Real Estate Register, to be voided or reversed;
(ii)Following compliance with Order 2.1 above, the Wife shall forthwith provide the Husband with an updated title search for the [Suburb J] property;
(iii)and File an updated Financial Statement.
6.[Ms Ye] must provide valuation of her motor vehicle registered as [Motor Vehicle 1].
7.[Ms Ye] must provide valuation of [L Street] property located at [L Street, City G, Country B (L Street)]
8.[Ms Ye] must provide valuation of [Suburb J] property located at Suburb J, City H, Country B].
9.In the case, where [Ms Ye] has sold [L Street] property, she must file an affidavit addressing the circumstances by which she is obtaining documents in relation to her disposal of [L Street] property. [Ms Ye] must provide transfer documents including but not limited to power of attorney she gave to her parents, transfer agreement and latest registration details of [L Street] property by title search from [City G] Real Estate Registration.
10.In the case, where [Ms Ye] has sold her [Motor Vehicle 1], she must file an affidavit addressing the circumstances by which she is obtaining documents in relation to her disposal of [Motor Vehicle 1]. [Ms Ye] must provide transfer documents including but not limited to power of attorney she gave to her parents, transfer sale agreement.
11.[Ms Ye] shall lodge with the Registrar of the Federal Circuit Court of Australia at [City M] all passports in his name and possession.
12.Until further order pursuant to section 114 of the Family Law Act 1975, the respondent husband, [Mr Cai] born [1993], is hereby restrained from leaving the Commonwealth of Australia. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the respondent husband on the Family Law Watchlist in force at all points of arrival and departure in Australia and maintain [Mr Cai's] name on the Watchlist until the Court orders its removal.
13.The children [X] born [2018] and [Y] born [2020] (‘the children’) are hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the respondent husband on the Family Law Watchlist in force at all points of arrival and departure in Australia and maintain two children’s name on the Watchlist for a period of 12 months, or until the Court orders its removal.
14. paternal grandmother [Ms Zexi] is discharged as a party to the financial aspects of these proceedings
15. [Ms Zexi] is a party to the parenting aspects of these proceeding.
16. [Ms Ye's] father [Mr E] and mother [Ms F] are joined as a party to the financial aspects of these proceedings
17.[Ms F and Mr E] file and serve within 14 days of the date of these Orders, a Response, Financial Statement and an Affidavit and any other documents required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in respect to the financial aspect of these proceedings, setting out with particularity the Orders that she seeks and the evidence that she relies on.
18.[Subpoena Ms F's] entry records into Australia in 2019 with Australian borders
19.Private expert from [Country B] or outside Australia regarding gift revocation should not be used and admissible in the court
20.Disqualify [the SJR]
21.The solicitor for Wife shall be restrained by force of injunction from acting on behalf of the Wife in these proceedings under s 114 of the Family Law Act 1975
22.[Ms Ye] shall attend upon a clinical psychologist to be agreed between the parties and failing agreement with the father to select from a list of 3 psychologists nominated by the ICL, for the purposes preparing a report about and assessment of the mother’s mental health.
23.The children [X] born [2018] and [Y] born [2020] (‘the children’) live with the paternal grandmother [Ms Zexi]
24.Father shall spend time with the children on every 4th Sunday for 4 hours without professional supervision and reporting.
25.[Ms Ye] shall spend time with the children, professionally supervised, and reporting. Costs to be paid by [Ms Ye].
(As it was recorded)
A number of the orders sought by the father in his Application for Review did not relate to the matters listed and determined by the senior judicial registrar on 1 July 2022, being paragraphs 2 to 10 inclusive and 16 to 21 inclusive.
In my view the conduct of the father in attempting to use a judicial review procedure to significantly expand the nature and character of relief sought from that listed and determined by the senior judicial registrar constitutes an abuse of process. That is not the purpose or design of a review process. The father, in my view, impermissibly, sought to obtain a collateral advantage beyond that available in Pt 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), see Williams v Spautz (1992) 174 CLR 509 at 521.
Additionally, as recorded by Gill J in orders made on 23 August 2022:
2.On 12 July 2022 [Mr Cai] filed an Application for Review of orders made by [a Senior Judicial Registrar] on 1 July 2022, and at the same time filed an Application in Proceedings supported by an affidavit. The Application in Proceedings and the Application for Review seek identical relief. The Application for Review is currently listed before Justice Campton on 19 September 2022. It has been determined that the Application in Proceedings should be adjourned until after the Application for Review is determined by Justice Campton in order to see whether it is necessary, or proper, for the Application in Proceedings to have further consideration.
The father’s Application in a Proceeding filed on 12 July 2022 is listed before Gill J at 10.00 am on 7 October 2022 for directions.
The father confirmed that paragraphs 2 to 10 inclusive and 16 to 21 inclusive in his Application for Review replicated exactly, including as to paragraph numbers, the orders sought in his Application in a Proceeding filed on the same date.
This is not the first time the father has pursued duplicated relief in these proceedings. The reasons for judgment delivered by Austin J on 21 June 2021 in Ye & Cai (No 3) [2022] FedCFamC1F 477 record the father filing an Application for Review on 14 March 2022 of interim spouse maintenance orders made by a senior judicial registrar on 8 March 2022, and then filing an Application in a Proceeding on 17 March 2022 “seeking exactly the same thing”.
An order will be made that the father’s relief as sought in paragraphs 2 to 10 inclusive and 16 to 21 of the Application for Review will be dismissed on the basis that they occasion an abuse of process. The father will not be prejudiced from agitating that relief. It can be maintained and preserved for prosecution by the father in his Application in a Proceeding listed before Gill J on 7 October 2022.
Hence, the balance of the relief sought by the father on the review hearing is restricted to paragraphs 1, 11 to 15 and 22 to 25 of his Application for Review.
In the early course of the hearing of the father’s Application for Review, I identified to the father that he sought parenting orders for the children live with his mother (paragraph 23 sought in his Application for Review) and that his mother had earlier unequivocally said that she did not seek such an order. The father then said that he abandoned the relief sought in paragraph 23 of the review and in the alternative sought on review an order that the children live with him
During the latter portions of the hearing the father abandoned his relief on review that the children live with him. He implicitly abandoned paragraph 25 of his Application for Review for the children to spend supervised time with the mother.
He pressed paragraph 24 of the review that the children spend time with him each fourth Sunday for four hours without professional supervision and reporting. He was firm in that he sought (paragraph 1) that all of the orders made on 1 July 2022 be discharged, including the extensive orders for the parties to engage in Court facilitated and regulated family dispute resolution. As best as I could determine he did not abandon paragraphs 11 to 15 inclusive and 22 of his Application for Review. He supported his mother being discharged as a party to the proceedings.
The mother and the Independent Children’s Lawyer opposed each of the applications for review, seeking that they be dismissed and implicitly that the orders as made by the senior judicial registrar be confirmed.
Rule 14.07(1) of the Rules provides that such Application for Review are to be hear as an original hearing.
For the reasons that follow:
(a)Orders 17 and 18 made 1 July 2022 will be discharged; and
(b)The paternal grandmother’s Application for Review is otherwise dismissed; and
(c)The time for the paternal grandmother to comply with Order 3 made 19 July 2021 be extended to 29 September 2022; and
(d)The paternal grandmother shall file and serve a financial statement on or before 29 September 2022; and
(e)The mother shall file and serve any amended Initiating Application on or before 5 October 2022 setting out with particularity the final orders she seeks as to parenting and property adjustment together with any orders as sought or claimed as against the paternal grandmother on both a final and interim basis or before 6 October 2022, and in the event any interim relief is sought as against the paternal grandmother as to preservation of property, such interim relief be listed for case management before Gill J on 7 October 2022; and
(f)The paternal grandmother shall file and serve any application in a proceeding seeking, as she is advised at her risk as to costs, to discharge orders 2 and 3 made 19 July 2021 and to be removed as a party to the proceedings on or before 6 October 2022, such application in a proceeding if filed to be listed for case management before Gill J on 7 October 2022; and
(g)The relief as sought in paragraphs 2 to 10 inclusive and 16 to 21 of the Application for Review of the father filed 12 July 2022 are dismissed noting that they are preserved for prosecution by the father in his Application in a Proceeding filed 12 July 2022 listed before directions before Gill J on 7 October 2022; and
(h)The Application for Review of the father filed 12 July 2022 is otherwise dismissed; and
(i)The relief sought by the father in paragraphs 1, 11 – 15, and 22 – 25 of the father’s Application in a Proceeding filed 12 July 2022 are dismissed.
(j)A notation will be made identifying the contents of paragraph 5.22 of the Central Practice Direction such that other than in urgent circumstances relating to issues of high risk the parties must obtain leave of the Court to file any Application in a Proceeding seeking interlocutory relief, such leave application to be determined by a judicial registrar in chambers.
The effect of these orders are:
(a)That the parenting of the children will remain as regulated by the orders made by the senior judicial registrar on 1 July 2022; and
(b)The balance of the father’s application in proceeding filed 12 July 2022 as not determined remains listed for directions before Gill J on 7 October 2022; and
(c)The application in a proceeding of the father seeking the video surveillance footage from the security system of the Court filed 17 August 2022 will remain listed for directions on 7 October 2022 and hearing on 14 October 2022; and
(d)The applications contempt of the father filed 1 October 2021 and filed 2 August 2022, subject to any case management orders in circumstances where each of the contempt applications are listed as part of the family dispute resolution event, will remain listed for hearing before Henderson J on 26 October 2022. In respect of the latter hearing. I note the mandatory provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”). It appears that this circumstance is yet to receive the Court’s attention.
Documents relied upon
The father relied upon:
(a)His Response to Initiating Application filed 12 August 2022;
(b)His Application for Review filed 12 July 2022;
(c)His Application in a Proceeding filed 12 July 2022;
(d)His affidavit filed on 7 December 2021;
(e)His affidavit filed 12 July 2022;
(f)His affidavit filed 11 September 2022;
(g)His outline of case filed 9 June 2022
The mother relied upon:
(a)Her Initiating Application filed 29 June 2021;
(b)Her Reply filed 24 November 2021;
(c)Her affidavit filed 3 December 2021;
(d)Her affidavit filed 9 June 2022;
(e)Her affidavit filed 2 September 2022; and
(f)Her outline of case filed 9 June 2022;
The paternal grandmother relied upon:
(a)Her Application for Review filed on 8 July 2022
(b)Her affidavit filed 5 October 2021
(c)Her affidavit sworn 25 October 2021.
The Independent Children’s Lawyer relied upon:
(a)Her Case Outline filed 10 June 2022.
The following documents were marked as exhibits:
·Exhibit 1 – the transcript of the proceedings before Judge Hughes on 29 July 2021
·Exhibit 2– the transcript of the senior judicial registrar from 2.18pm to 3pm on 1 July 2022
·Exhibit 3 – the transcript of proceedings before Gill J on 23 August 2022;
·Exhibit 4 – Child Impact Report dated 17 May 2022;
·Exhibit 5 – Final Violence Order made by consent and without admissions in the Magistrates Court of the D Region in late 2021 restricting and prohibiting the behaviour of the father in relation to the mother;
·Exhibit 6 – Medical certificate as to the father’s mental health dated early 2022;
·Exhibit 7 – Child Youth Protection Services document dated 12 August 2021;
·Exhibit 8 – Child at Risk Health Unit Medical Report of Dr N in mid-2021;
·Exhibit 9 – s 69ZW report dated 29 July 2021; and
·Exhibit 10 – C Contact Service documents.
Exhibit 5 records that the final Family Violence Order operates for a period of two years in extensive terms as follows:
1. The respondent is prohibited from:
(a) attending the [O Early Learning] Centre, [Suburb P,] [D Region];
(i)except in accordance with an order or parenting plan made under the Family Law Act 1975;
(b) being within 100 metres of the protected person(s);
(i)except at a Court or Tribunal proceeding;
(ii)except at a counselling or mediation session or restorative justice conference arranged with the adult protected person's consent;
(iii)except in accordance with an order or parenting plan made under the Family Law Act 1975;
(iv)except with the written agreement of the adult protected person;
(c) locating, or attempting to locate, the protected person(s);
(d) contacting the protected person(s);
(i)except through a legal practitioner;
(ii)except at a Court or Tribunal proceeding, or to take a step in a Court or Tribunal proceeding;
(iii)except at a counselling or mediation session or restorative justice conference arranged with the adult protected person's consent;
(iv)except in accordance with an order or parenting plan made under the Family Law Act 1975;
(v)except with the written agreement of the adult protected person;
(e)engaging in behaviour that constitutes family violence towards the protected person(s);
(f)causing someone else to locate or attempt to locate the protected person(s), except as permitted by this order;
(g)causing someone else to contact the protected person(s), except as permitted by this order;
(h)causing someone else to do anything that is family violence in relation to the protected person(s).
An interim family violence order was made in the Magistrates Court of the D Region in mid- 2021 restricting and prohibiting the behaviour of the mother in relation to the father and the children. That complaint was withdrawn on or about late 2021 and the interim family violence order discharged.
Background
The father was born in 1983 and is currently 39 years old. The mother was born in 1993 and is currently 29 years old.
The mother is not employed. She receives Centrelink benefits and resides with the children in temporary accommodation provided by the Q Domestic Violence Service at an undisclosed address in City M.
The father was employed full time as a public servant but has not been engaged in employment since his hospitalisation in early 2022. He lives with his parents.
The parties married in 2017. During the mother’s pregnancy with X, the parents commenced to live with the father’s parents.
The mother contends that she, as between she and the father and the paternal grandmother, was the person who was primarily responsible for caring for the children on a day-to-day basis during the period of the marriage save for a period of approximately for four months when she was in Country B in 2018 (prior to the birth of Y). The father contends that “while he was at work” the children were primarily parented by the paternal grandmother and thereafter by the paternal grandmother and him after work. He said that nannies attended from Country B to assist in the care of the children.
The circumstances of the mother spending time in Country B in 2018 are the subject of controversy. The mother contends that she went to Country B because the father allegedly informed the Department of Immigration and Border Protection that she did not want to live in Australia and hence believed she could not remain in this country. She returned to Australia after negotiating with the father’s family. The father and the paternal grandmother contend that the mother returned to Country B because she “wanted a new husband”.
The mother separated from the father and left the paternal grandparent’s home on 19 April 2021. At that time X was approaching three years old and Y was almost one year old.
The children have not spent time with the father since separation in April 2021, being a period of 17 months. Y has now spent significant longer living apart from her father than with him.
Each party makes serious and significant allegations as to family violence occurring during the relationship, including of a physical and psychological nature upon the children as recorded later in these reasons.
It is uncontroversial that the father has experienced significant mental health challenges. In Exhibit 6, being a medical certificate dated early 2022, the father is recorded as being unfit for work for a period from early 2022 to mid-2022, by reason of a diagnosis of a “major depressive disorder”. His symptoms are recorded as being fatigue, sleep disturbance, low appetite, weight loss, [and] difficulty concentrating”.
At the hearing before me, the father contended that he is no longer confronted by any mental health challenges. That contention is questioned by both the mother and the Independent Children’s Lawyer.
History of the litigation
Since its inception this matter has consumed considerable Court resources, including the requiring the attention of both judicial and delegated judicial officers, which has come at the expense of the remaining litigants requiring the Court’s assistance. A detailed history of the litigation to date would be voluminous, and accordingly these reasons record only in brief them only in brief:
(a)The mother initiated the substantive proceedings on filing in what was the Federal Circuit Court on 29 June 2021 an Initiating Application seeking orders as to property adjustment between her and the father.
(b)The father filed a Response to an Initiating Application on 12 August 2021 contending that there was no warrant for adjustment of property as between he and the mother and seeking orders that the children live with him.
(c)The mother filed a reply on 24 November 2021 seeking orders that the children live with her and spend time as agreed between she and the father.
(d)No Response to an Initiating Application has been filed by the paternal grandmother. Save as sought in the Application for Review filed 8 July 2022, she has not filed any document identifying any relief sought in the proceedings
Over the nearly fifteen months of this litigation thus far, the parents have filed six applications for interlocutory and procedural orders. The father has filed two Contravention Applications pursuant to Pt XIIIA of the Act (not being as to orders affecting children).
There have been nine court events or interim hearings before judges and delegated judicial officers in Division 2 of the Federal Circuit and Family Court of Australia and 14 such Court events or hearings before judges (including Gill J and Austin J) and delegated judicial officers including senior judicial registrar’s and judicial registrar’s of Division 1 of the Federal Circuit and Family Court of Australia. Two prior Applications for Reviews of determinations by delegated judicial officers were determined by Austin J on 20 June 2022. The remaining two Application for Review of the exercise of power by delegated judicial officers were listed before me.
The following further interlocutory applications remained outstanding for determination as at the date of the hearing before me:
(a)An Application in a Proceeding filed by the father on 12 July 2022, which is listed for case management before Gill J on 7 October 2022, and dispute resolution before an SJR on 29 November and 1 December 2022; and
(b)An Application in a Proceeding filed by the father on 17 August 2022, which is listed for Hearing 14 October 2022 before Gill J;
(c)Two Contravention Applications filed by the father, the first on 1 October 2021 and the second on 2 August 2022, which are both listed for hearing on 26 October 2022 before Henderson J. Both contraventions are also listed for Dispute Resolution before an SJR on 29 November 2022 and 1 December 2022.
Section 43 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides as follows:
43 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
The application of the section is obligatory and is imposed upon the Court, not the parties. The Court “must” grant such remedies so far as possible to determine matters finally and avoid a multiplicity of proceedings. The point of the section is to avoid needless litigation.
Section 67 of the FCFCOA Act reinforces and elaborates on the overarching purpose of the family law practice and procedure provisions identified in s 67(4) of the Act. It imposes a continuing duty to promote the overarching purpose in applying the Rules. Section 68 of the FCFCOA Act obliges parties to act consistently with that overriding purpose.
Rule 1.04 mandates the just resolution of proceedings “according to law and as quickly and inexpensively and efficiently as possible”.
The conduct of the parties in these proceedings to date has been entirely contrary to that mandated by the FCFCOA Act and the Rules. They have not efficiently used the judicial and administrative resources available to ensure the effective disposal of the Court’s overall case load and these proceedings in a timely manner, and at a cost proportionate to the importance and complexity of the matters in dispute and have otherwise ensured in a gross multiplicity of proceedings.
I find that on the material before me that each of the parties have failed in their duty to promote the overarching purpose of the legislation and rules and that I am obliged to ensure that a multiplicity of proceedings ought not occur and any abuse of process by way of continued interlocutory applications is avoided (see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 24 and 25).
Paragraph 5.22 of the Central Practice Direction provides that other than in urgent circumstances relating to issues of high risk, parties may each file a maximum of two Applications in a Proceeding without leave. In this case, leave of the Court must now be sought prior to the filing of any further interlocutory application. A leave application may be determined by a judicial registrar in chambers. An application brought by an Independent Children's Lawyer does not require leave.
Compliance by the parties to this litigation with paragraph 5.22 of the Central Practice Direction ensures that the judicial resources of the Court will be allocated in the future to these parties in a proportionate manner so as to avoid any duplicity of relief and will achieve promotion of the overarching purpose of the legislation and rules. This filtering process will ensure that future applications for interlocutory relief to be listed before a judge or delegated judicial officer for determination comply with the rules of Court and do not occasion an abuse of process or can be used as instruments of oppression.
The paternal grandmother as a party to the proceedings
The mother’s Initiating Application seeking orders as to property adjustment filed on 29 June 2021 did not expressly seek any orders affecting the interests of the paternal grandmother. The paternal grandmother was not named as a party in that Initiating Application.
On an ex parte basis as against the paternal grandmother, orders were made on Hughes J on 19 July 2022 in the following terms:
1.The husband’s mother, [the paternal grandmother] born in 1955, is joined as the second respondent to these proceedings.
2.The second respondent, [the paternal grandmother], is hereby restrained from transferring, gifting or dealing in any way with the funds provided to her by her son, [the father], from the sale of properties in his name since 1 June 2021.
3.The second respondent, [the paternal grandmother], shall within 14 days, file an affidavit setting out with particularity the following:
(a)what funds have been provided to her by her son, [the father], since 1 June 2021;
(b)where those funds are now held; and
(c)if not still held by her, how those funds were disposed of.
The transcript of the proceedings before Hughes J on 29 July 2022 records oral evidence elicited from both the father and the paternal grandmother. A broad summary of that evidence is:
(a)The father was the registered proprietor of five real properties as at the date of separation subject to mortgages; and
(b)The father conceded that on or about 3 June 2021 he received a letter from the mother’s lawyer requesting that he entre into an undertaking not to sell any real properties and;
(c)Notwithstanding that request he sold all of the properties “very quickly” (in a period of about one month) to “repay debts to [his] mother”. One of the real properties may have been sold prior to mid-2021. The sale of the balance of the properties were exchanged after a date in mid-2021 and completed on or before the end of mid-2021. The process of the first marketing of the properties with real estate agents commenced in mid-2021.
(d)The proceeds of sale of each property conducted through a conveyancing agent or solicitor were received by the father’s mother generally by way of bank cheque or by way of electronic transfer. The evidence suggests that two of the disposals of real property may have occurred at significantly less than the price range opined by the listing agents.
(e)The advance of funds from the paternal grandmother to the father occurred pursuant to an oral loan agreement made in 2011. There are no documents available verifying the source of the funds or their payment to the father.
(f)The father may have paid a sum of $350,000 to the paternal grandmother in May 2021 from “the money in a banking account from the property investments”. The paternal grandmother in her evidence said no such monies were paid. During the course of her cross-examination, an exchange in Country B language occurred between herself and either the husband or the father while she was giving her oral evidence she then said those monies were provided to her in May 2021.
(g)The paternal grandmother is “retired”. The evidence did not disclose her current property interests or as to whether she in receipt of an income tested commonwealth benefit.
(h)It was her evidence that she was aware that the father had “sold five properties in his name between 22 June and 2 July [2021]”.
(i)The paternal grandmother said she had borrowed funds in Country B and had provided those funds to the father in Australia in 2011 on the basis that the father “promised to repay them back in ten years’ time”.
(j)The net proceeds of sale received by the paternal grandmother from the sale of the five properties was in the range of $1.3 million.
(k)The paternal grandmother said that interest was a condition of the loan advance but she could not recall the rate of interest on the principle advanced or whether there was any discussion as to the rate of interest payable at the time of the advance.
(l)The father had taken the paternal grandmother to the R Bank to assist her in transferring the proceeds of sale of the five properties she received to the paternal grandmother’s “older sister, older brother, a friend, and some other people”. She said that the transfers were made to a total of ten people.
(m)That the paternal grandmother could not recall the branch of the R Bank that facilitated the transfers. The paternal grandmother further said that she had only one single bank account in Australia at the R Bank.
The paternal grandmother did not file the affidavit as ordered on 19 July 2022 (it was directed to be filed by 2 August 2022). Both the father and the paternal grandmother contended that Order 3 made on 19 July 2022 was discharged by way of the orders made 29 July 2022. I do not accept that submission. They each further contend that the oral evidence taken on 29 July 2021 effected compliance with Order 3 made 19 July 2021. I do not accept that submission.
The paternal grandmother’s affidavits filed on 5 and 25 October 2021 do not comply with Order 3 made on 19 July 2021.
The latter affidavit is unsworn and does not record that it has been translated from the English language to the Country B language prior to it being executed by the paternal grandmother. The paternal grandmother denied that the document had been prepared by the father saying that a friend in her English language class assisted her with the preparation of the affidavit. I find that contention to be incredulous. The affidavit commences:
I, [Mr Cai] of [S Street, Suburb T] in the [D Region], public servant, say on oath:….
The mother named the paternal grandmother as party to the proceedings in her Reply. She did not seek in her Reply any orders that directly affected the rights of the paternal grandmother.
Rule 3.01 records the requirements as to necessary parties to proceedings. It provides:
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
The evidence in this proceeding satisfies the second limb of the Rule, but the current terms of the final relief as currently constructed by the mother do not satisfy the first. That is, on the case as it is implicitly articulated by the mother, I cannot identify in what way the paternal grandmother rights will be directly affected by an issue in the proceedings.
I am satisfied that the paternal grandmother is aware of the nature of the complaint made by the mother as to her conduct in conjunction with the father in the shadow of the separation of the parents. That said it is a fundamental principle of justice that a person who is a stranger to the marriage is entitled to know the case against them and is given and adequate opportunity of replying to it (see Kioa v West [1995] 159 CLR 550).
The word “necessary” for the purposes of a predecessor of the r 3.01 was described by Warnick J in Wayne & Dillon & Anor [2008] FamCAFC 204, as meaning:
...something more than "useful" or "expeditious". In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified "case", joinder is unlikely to be "necessary". However, if a cause of action, recognisable at law, against a "third person" is particularised, then it is at least highly likely that joinder will be "necessary for the court to completely and finally determine all matters in dispute."
In Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223, Le Miere J helpfully referred to relevant authorities and articulated, in precise terms, why it is necessary for a party seeking to join a third party to litigation to establish an arguable case, in the following terms:
27.The applicant on a joinder application must show that there is an arguable case sufficient to resist the entry of summary judgment by the parties sought to be joined. It would be futile to order that a person be joined as a defendant if the material before the court disclosed that if the person, having been joined as a defendant, applied for summary judgment the application would succeed.
(Citations omitted)
Acceding to the application of the paternal grandmother and the father at this time to remove the paternal grandmother from the proceedings would be in reality to summarily dismiss any cause the mother may have against the paternal grandmother. The implicit challenge made by the mother as to the integrity of the contended loan advances made by the paternal grandmother to the father could not be said to be “so fanciful” that it is “clear that there is no real question to be tried” (see Ebner & Pappas [2014] FLC 93-619).
The evidence provides a foundation to confirm the joinder of the paternal grandmother to the proceedings. The joinder made by Hughes J mandates that the paternal grandmother has obligations of disclosure of both documents and information relevant to the issues in dispute for the purposes of litigation. On the evidence identified by the paternal grandmother to date she has not complied with those obligations as clarified in ch 6 of the Rules.
The mother ought to be afforded the opportunity to clearly articulate her relief as sought against the paternal grandmother both on a final and interim basis so as to ground an effective legal remedy as part of the property adjustment proceedings.
The current financial circumstances of the paternal grandmother have not been disclosed. I will direct that she file a financial statement in compliance with the Rules expeditiously to enable the mother to consider any interim order she may prosecute for the preservation of property pending determination of any amended substantive relief she may seek.
Importantly, for all the parties, the transactions between the father and the paternal grandmother as identified in these reasons can be the subject at testing at trial including by way of cross-examination after disclosure has occurred in accordance with the Rules.
The Rules recognise that a party who has been joined to a proceedings may subsequently apply to be removed as a party to the proceedings if considered appropriate. In the event the paternal grandmother has been incorrectly joined, she may achieve some solace by way of costs.
A litigant is either a party to the proceedings or they are not. While appreciating the objectives of the senior judicial registrar in making Orders 17 and 18 on 1 July 2022, to my mind, the orders are both artificial and confusing. In the event the paternal grandmother is a party to the proceedings and her interest is restricted to the financial dispute, it is simply a matter for her to be excused from participation in the parenting aspect to the proceedings. Although it is not “on all fours”, a similar circumstance exists whereby the Independent Children’s Lawyer does not engage in the financial part of the proceedings.
The interactions and transactions between the father and the paternal grandmother as identified in these reasons do not exist in isolation. The reasons for judgment of Austin J (Ye & Cai (No 3) [2022] FedCFamC1F 477) record an analysis of evidence produced by the father for the purposes of that hearing as to the mother disposing of her interest in two Chinese real properties in favour of her parents and as to default in her disclosure obligations.
None of the parties in these proceedings have filed an undertaking as to disclosure in accordance with r 6.06. It will be a matter for the docket judge or judicial registrar to consider when that undertaking ought be filed and served.
In the circumstances I will dismiss the relief sought by the paternal grandmother in her Application for Review. I will make orders ensuring that the paternal mother had an opportunity to file an Application in a Proceeding as she is advised at her risk as to costs to discharge Order 2 and Order 3 made on 19 July 2021 and to be removed as a party to the proceedings after she has complied with at least the disclosure obligations identified in these reasons and after the mother has had an opportunity to amend her final and interim relief by way of an Initiating Application.
Parenting
Even though the parties have narrowed the scope of their dispute it still falls to be considered by reference to the principles outlined in Pt VII of the Act. Pursuant to s 65D(1) (subject to certain sections), the Court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. In determining which orders will be in the children’s best interests, regard must be had to the relevant matters set out in s 60CC of the Act.
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 (“Goode”). The High Court in MRR v GR (2010) 240 CLR 461 affirmed those principles. Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting.
This Court has, on a number of occasions, described the difficulties of determining cases which concern children in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested and conflicting factual contests resolved. The Full Court in Marvel & Marvel (2010) 43 Fam LR 348 observed that interim hearings and consequential orders are “a necessary temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” such that a conservative approach is adopted. In this interim hearing environment on review it is important that consideration to be given to less contentious matters such as agreed facts and issues that are not in dispute. Merely because facts are disputed does not mean that the evidence on the topic must be disregarded. Evidence relevant to the welfare of children cannot be ignored because their accuracy has been put into issue (see Salah & Salah [2016] FLC 93-713 at 39 to 42).
The Court’s enquiry should primarily be “prospective”, that is, considering the prospect of the child having a meaningful relationship with their parents in the future. However, at the same time, the Full Court in McCall & Clark (2009) FLC 93-405 (“McCall”) recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future.
In this matter the scope of the interim parenting dispute is:
(a)The mother and the Independent Children’s Lawyer seeking confirmation of all of the parenting and Court scaffolded family dispute resolution orders as made 1 July 2022; and
(b)The paternal grandmother not seeking any parenting orders; and
(c)The father seeking a discharge of all of the orders made by the senior judicial registrar on 1 July 2022 except the children live with the mother. Broadly this includes the order that he spend supervised time with the children and in lieu thereof he spend time with the children on one weekend per month for four hours absent supervision,
(d)That the mother lodge her passport with the Registrar of the Court;
(e)The mother be restrained from leaving Australia pending further order and her name be placed on the airport watch list until it is removed by the Court.
(f)The children be restrained from leaving Australia and their names be placed on the Airport Watch List for a period of 12 months or until the Court orders their removal
(g)That the mother attend upon a clinical psychologist as a single expert to prepare a report assessing her mental health.
(h)That the orders made for the parties to attend the Court regulated and ordered FDR conference scheduled to commence before a Senior Judicial Registrar on 29 November 2022 be discharged;
(i)The father attend upon a single expert psychologist for the purposes of a preparation of a report assessing his mental health;
(j)The father enrol, participate and complete the circle of security parenting course and enrol in, and separately participate from the mother, a post separation parenting course with C Centre .
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. The presumption applies unless it is displaced because there are reasonable grounds to believe there has been abuse of a child or family violence (s 61DA(2)) or in an interim matter, the Court does not consider it appropriate to apply the presumption (s 61DA(3)). In this matter the presumption is rebutted having regard to the versions of either party as to extensive family violence. Additionally, it is not appropriate to apply the presumption. Neither parent nor the Independent Children’s Lawyer seek an order as to parental responsibility. They do not contend that equal time or substantial or significant time is considered to be in the best interests of the children at this time and that orders regulating the best interests of the children ought to be the result of consideration of relevant matters in s 60CC of the Act.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant” being advantageous to the child. The Full Court in McCall approved the interpretation of the phrase by Brown J in Mazorski & Albright [2007] FamCA 520 that:
26.What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence".
Each of the parents and the Independent Children’s Lawyer agree that it is in the best interests of the children to have meaningful relationship with both of their parents. Both the mother and the Independent Children’s Lawyer adopt the position such that should the father put evidence before the Court that he no longer lives with mental health challenges or that they are sufficient ameliorated by way of therapy and medication, and subsequent to him re-establishing a relationship with the children within a supervised spend time with environment, his time with the children ought to expand and become unsupervised.
The Father seeks to spend time with the children for 4 hours each month. Implicitly he is of the view that such period and frequency of time spent is sufficient or adequate for these children of tender years to develop a meaningful relationship with him after a period of not seeing him for the past 17 months.
The evidence of the mother as to family violence includes but is not limited to:
(a)The father threatening to kill the mother, and in the late part of their cohabitation, telling the mother that he proposed to kill both she and the children.
(b)The father slapping her on three occasions during their relationship and on one occasion kicking her in the stomach when she was pregnant with the child Y.
(c)The father engaging in coercive and controlling behaviour by isolating the mother and refusing to allow her to have any social contacts. This extended to the father refusing to allow the children to attend child care.
(d)The father and the paternal grandfather engaging in exchanges whereby they were yelling at each other in the presence of the mother and/or the children and on occasion throwing objects at each other, and on one occasion the father and the paternal grandfather threatened each other with pairs of scissors. The mother’s evidence is that she is fearful of the father and the paternal grandparent’s
(e)The father has slapping the children’s faces and locked them in their bedrooms.
(f)The paternal grandfather hitting X on his buttocks.
(g)The paternal grandmother has telling the children that the mother did not love them;
Some of the allegations the father makes as to family violence includes but are not limited to that:
(a)The mother choking him on multiple occasions;
(b)The mother slapping him on multiple occasions;
(c)The mother yelling offensive things at him;
(d)The mother one occasion throwing a photograph at his leg causing it to bleed;
(e)The mother on many occasions threatened to kill both he and the children;
(f)The mother pushed, grabbed and scratched the father’s neck leaving a bruise;
(g)The mother hitting Y’s head and subsequently causing a bruise to Y’s neck with her nails, such bruise leaving a scare;
(h)The mother hitting the children with utensils including a spoon, a ruler, and a massage stick.
The father contends that in addition to physically abusing the children the mother has neglected their day to day needs. He submits that the mother is using the legal system to prevent the children having a relationship with him and to financially abuse him.
The documents produced by Child Youth and Protection Services (Exhibit 7) record multiple interventions with the family. Broadly the father was critical of the Child Youth and Protection Services intervention and the mother took the view that the departmental involvement was beneficial notwithstanding the father had made false reports as to she physically abusing the children.
Without recording all the material contained in Exhibit 7, the Independent Children’s Lawyer submitted absent controversy that the most recent engagement with the family was shortly after the parents’ separation in 2021. The Independent Children’s Lawyer contended and I accept that there are no current departmental concerns identified with the mother’s parenting of the children.
The father contended that the Court ought to make a finding rejecting the mother’s allegations as to family violence notwithstanding the abridged nature of this interim hearing. He submitted that the mother’s affidavit evidence was not credible or reliable, that they were “just words” used by the mother in the affidavit, and that the absence of objective evidence to support her contentions (such as photographs or from other witnesses) were determinative of her allegations. By way of contrast the father contended that his contentions as to violence ought to be accepted because he had photographs of bruising and a bite mark establishing objective support of his allegations of family violence as made against the mother. I am unable to make any findings in this regard, but note the contents of the material produced to the s 69ZW order as to the assessment of the D Region Child Welfare Authority on these subject matters. I am also mindful of the Full Court’s guidance in Amador & Amador (2009) 43 Fam LR 268 that:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
I accept the submission of the Independent Children’s Lawyer that the mother gives evidence as to being well supported in the care of the children by community organisations with protective measure in place for the benefit of her and the children. There is no evidence to suggest the children are otherwise than stable and secure in the mother’s care and are have commenced attending child care regularly.
The overlay of the father’s mental health presentation is a complicating factor in the proceedings. His diagnosis of a major depressive disorder is uncontroversial. As recorded, Exhibit 6 provides evidence of the father being unable to work for a period of some months and describes his symptomology.
The case of the Independent Children’s Lawyer and the mother as to risk factors for children father’s care if the time they spend with him is unsupervised, require careful consideration. The uncontroversial fact that the children have been cared for solely by the mother for the past 17 months since separation in April 2021 absent coming to the notice of child welfare authorities weighs in the assessment of risk. The spectre as to the father’s mental health presentation remains at large. The Court Child Expert during the attendance on the father on 10 May 2022 observed the father’s affect was somewhat flat, and that he spoke in a quiet, monotone voice, being consistent with a diagnosis of being depressed.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out additional considerations in determining what is in a child’s best interests. Consideration has been given to the matters set out in s 60CC generally. I will not specifically identify each of the subsections, but will concentrate on those considerations which are of greatest relevance to this matter.
As to the nature of the relationship, the Court Child Expert observed that the children’s were relaxed in the father’s care and were tactile in their interactions with the father. She observed that the mother was attentive to the children’s needs and they remained in close proximity to him. The Court Child Expert opined that the mother has a “high level of parenting confidence, and is attuned to [the children’s] needs”.
The mother submitted that the father has no intention to see the children or to engage with C Centre. His explanation for not undertaking the intake process at C Centre pursuant to the orders made 1 July 2022 and hence commencing to spend time with the children, all be it not on the terms he considered appropriate, were unconvincing. He said he spoke to C Centre by telephone and that each visit would cost $400, being $200 for a visit on a Sunday and the cost of a report. He said he had no funds to pay supervisors. He implied that if it didn’t cost him any money, he would engage in supervised time. I enquired as to employment undertaken by the father since he was hospitalised in March 2020. He said that he is “looking for work”. I enquired as to why he could not attend for supervised time during the week to which he replied that he had “other commitments”. On further enquiry as to the nature of those commitments he said that he had training to undertake but was yet to undertake it. On one view, the import of the father’s submission that “[he] feel[s] like a criminal” and created an impression that he would not, in reality, avail himself of supervised time.
The evidence produced by the Independent Children’s Lawyer indicated that the father could undertake immediate week day time spent after completing the intake assessment at a cost of $130 for a two hour week day slot and $200 for a two hour weekend slot. The Independent Children’s Lawyer indicated that in the event the father waited until a government subsidised free slot or spot was available, supervised time would be delayed for three months after completing an intake assessment.
The mother said, and I accept, that she has undertaken the intake process for C Centre.
Almost three months have elapsed since the orders were made on 1 July 2022. I find that, had the father undertaken the C Centre intake process immediately after the making of the orders on 1 July 2022, time spent with the children would have likely commenced by the time his review was heard.
The Independent Children’s Lawyer submitted and I accept that the father’s time with the children ought be professionally supervised for the following reasons:
(a)A significant period of time has elapsed since the children spent time with their father save for the purposes of the Child Impact Report interviews on 22 May 2022; and
(b)Having regard to the tender age of the children, especially when considered from the time of separation, it is in the children’s interest to reintroduce, rebuild and re-establish their relationship with the father having regard to the period that has transpired with no time being spent or no communication. This factor is compounded by the opinion expressed by the Court Child Expert as to an absence of appreciation by the father as to the developmental needs of the children in all the circumstances of the case.
(c)In the circumstances of the serious allegations made as to family violence the fact of supervision provides a level of protection as to further allegations being made by the mother as against the father and without determining those allegations to mitigate risk to the children. It is uncontroversial that the children are not of an age where they can act protectively for themselves. This circumstance is aggravated by the father’s contention as to the mother manufacturing false allegations of family violence, the mother “faking” her injuries and the mother engaging in a carefully crafted and planed course to create a “paper trial” so that a self-fulfilling prophecy as to family violence can be achieved.
(d)The father has not put into evidence any opinion from his treating mental health practitioners as to his depressive symptomology not presenting a risk to the care of the children.
The mother made in clear during the course of her submissions that she is happy for the father to spend time with the children provided it is currently in a controlled and supervised environment to allow him to re-establish his relationship with the children and to mitigate risk to the children.
The father’s submissions on a number of occasions said “I haven’t done anything wrong” and “my mental health is not relevant”. I do not accept the second submission. In attempting to explain his failure to put any further evidence as to his mental health presentation he indicated that the Court could “subpoena records from the hospital” to satisfy itself as to the integrity of his contentions. His further submission was to the effect “I have no need to reconnect” to the children and “I am only seeking four hours”. These submissions are reflective of his parental capacities and attitudes to parenthood.
I accept for the purpose of this determination the evidence of the Court Child Expert as follows:
19. [X] and [Y] are both at very vulnerable stages in their development and need their carers to focus on, and be responsive to their needs. A priority for the children is the reestablishment and development of their relationships with their father and the paternal grandparents. Supporting [the mother’s] wellbeing is also an important consideration because she is the children’s primary carer and they are highly reliant on her for their physical, emotional and developmental needs.
20. As very young children, [X] and [Y] will benefit most from parenting arrangements that provide them with a sense of security and stability in their primary care relationship with their mother, and the chance to develop their relationship with their father and paternal grandparents.
I am satisfied that on the material before me that the primary consideration of the need to protect the children from a risk of harm outweighs any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
I accept and find as opined by the Court Child Expert that it is in the children’s best interests at this time to begin supervised time with the father at least for two hours each fortnight. It will be beneficial to the children if the father can also exercise mid-week supervised time. The order made by the senior judicial registrar on this subject matter will be confirmed. The paternal grandmother will be at liberty to spend time with the father during his time allocated if he so wishes her to.
The balance of the parenting orders challenged by the father on review
The father made no submissions as to the relief he sought in the paragraphs 11, 12, 13 and 22 of his Application for Review. Such relief will be refused and the said paragraphs dismissed
The father opposed the family dispute resolution orders made 1 July 2022 which is scheduled to occur before a senior judicial on 29 November and 1 December 2022. He made no probative submission why that Court scaffolded and facilitated process ought not be implemented. His challenge to those orders is, to my mind, nonsensical and contrary to the legislative obligations of parties to conduct litigation in this Court. It will be dismissed.
The father sought to discharge the order made for a single expert to opine on his mental health. Again I was not persuaded by any of the submissions by the father that such process ought not occur. As recorded the father’s mental health is a relevant issue in these proceedings. I am satisfied that the appointment of a single expert to opine on this issue will progress the best interests of the children. The father’s challenge to that order will be dismissed and the orders made by the senior judicial registrar confirmed.
Finally, the father sought to discharge the orders requiring that he attend the Circle of Security and C Centre courses. He made no submissions to support any other course other than to confirm such orders. I am satisfied and find that it is in the best interests of the children for the father to attend such programs. Again, the father’s challenge to that order will be dismissed and the orders confirmed.
Conclusion
In the circumstances the father’s Application for Review will be dismissed.
For all of the above reasons, I make the orders as set out at the forefront of this judgment.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 September 2022
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