Zackary and Rabassa

[2019] FCCA 2901

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACKARY & RABASSA [2019] FCCA 2901

Catchwords:
FAMILY LAW – Parenting – interim – mother withholding child from the father – allegations of abuse of the child by the father – application for change of residence by the father on an interim basis.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 62G(2), 67Z, 69ZW, 102NA(1)(c)(i), 102NA(1)(c)(ii)

Family Law (Fees) Regulations 2012

Federal Circuit Court Rules 2001, r.15.28

Applicant: MR ZACKARY

Respondent: MS RABASSA

File Number: MLC 6269 of 2016

Judgment of: Judge Harland

Hearing date: 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Melbourne

Delivered on: 19 September 2019

REPRESENTATION

The Applicant appearing in person.

The Respondent appearing in person.

Counsel for the Independent Children’s Lawyer: Ms Sdraulig

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. The mother produce X born in 2016 to the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria at 9.00am on 23 September 2019.

2. Pursuant to s.11F of the Family Law Act 1975, the mother and the child X born in 2016 attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services on 23 September 2019 at 9:00am with the father to attend at 9:30am on 23 September 2019 at the Melbourne Registry of the Federal Circuit Court of Australia for the purposes of the preparation of an oral report, which is to be given to the court at 10:00am on 23 September 2019.

3. The proceeding is adjourned for part heard Interim Defended Hearing on 23 September 2019 at 10:00am.

4. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

   The matter be adjourned to 9 December 2019 at 10:00am for final hearing (with an estimated hearing time of three days).

5. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 28 days before the final hearing.

6. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

7. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

8. At least 72 hours prior to the trial each party provide to the other parties and to the Associate to the Judge a Case Outline document as follows:

Parenting

(a)a list of the documents to be relied upon;

(b)a brief chronology;

(c)an outline of contentions with respect to:

(i)whether the presumption of equal shared parental responsibility applies (s.61DA),

(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

(iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(v)any other matters  relevant to the decision; and

(d)a statement of the precise orders sought

1. Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

2. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

3. Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

4. Pursuant to s.62G(2) of the Family Law Act 1975, the mother and the father and the child X born in 2016 attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of a family report to be given to the court on or before 15 November 2019.

5. The family report deal with the following matters:

   (a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;

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

   (c)any other matters that the family consultant considers important to the welfare or best interests of the child.

6. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

7. Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

   (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

   (b)any intervention or restraining orders currently in force.

8. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

9. If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days notice in writing.

10. Upon the family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

11. Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a children’s court;

    (b)a child protection authority;

    (c)a state or territory legal aid authority; and

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

12. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

13. Each party MR ZACKARY born in 1975 and MS RABASSA born in 1985 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born in 2016 from the Commonwealth of Australia pending further order.

14. That X born in 2016 be and is hereby restrained from leaving the Commonwealth of Australia.

15. It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

16. This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).

17. As section 102NA(1) of the Family Law Act 1975 (Cth) applies, the applicant and respondent are to do all things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable their being represented at the final hearing and both parties apply to said scheme on or before 26 September 2019.

AND THE COURT DIRECTS THAT:

1. Chambers send a copy of these Orders to the respondent via email.

AND THE COURT NOTES THAT:

(A)If the mother fails to bring X to Court on 23 September 2019 to the Child Dispute Centre as directed, then a recovery order may issue removing X from her care.

(B)In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a)the filing of documents; or

(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

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

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

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

(F)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

(G)At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

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

1. In the event a party to these proceedings objects to the release of the family report pursuant to order 18 herein, he or she shall write to the chambers of Judge Harland seeking that the matter be listed on short notice for his or her objection to be heard.

IT IS NOTED that publication of this judgment under the pseudonym Zackary & Rabassa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6269 of 2016

MR ZACKARY

Applicant

And

MS RABASSA

Respondent

REASONS FOR JUDGMENT

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

2. This matter concerns the best interests of X, born in 2016, who is aged three and a half. The matter has a long history. It is a box file with the Court, which is an indication of that. This is the second set of proceedings. Despite its history and the material before the Court, it has not had a final contested hearing as the case resolved by consent at the final hearing last year.

3. I do not intend to set out the history of the matter in any detail due to the limitations of time. I should indicate that the first set of proceedings, which were also before me, involved several court appearances where there were ongoing issues with respect to the implementation and compliance with orders. What was clear during those proceedings, and is even clearer now, is the high level of conflict between the parties.

4. Those proceedings also involved the Independent Children’s Lawyer who has been reappointed in these current proceedings. The current proceedings were commenced by the father when he filed a contravention application on 15 March 2019. He filed a further contravention application on 12 April 2019.

5. The father’s contravention applications were returnable in the Registrar’s contravention list on 13 May 2019 and 1 July 2019. It is apparent from the orders the Registrar made that it was appropriate to make an order for substituted service.

6. The matter was then listed before me for the father’s contravention applications on 21 August 2019. By that stage, the day prior, the father had filed an initiating application seeking orders for the change of residence of X. The mother has since filed a response and supporting documents on 9 September 2019 seeking a variation of the orders made last year, seeking to reduce the father’s time.

7. The final orders, dated 27 June 2018 that were made by consent, provided for X to remain living primarily in his mother’s care, but with having increasing time with his father. They provided for the father to spend time with X for four nights each fortnight until 28 June 2019 when it would increase for another night.

8. The orders also addressed the time that the father would spend with X once he started school. The orders dealt with special days, travel and other ancillary orders, including with respect to taking X to medical practitioners. The orders also provided for the parties to exercise equal shared parental responsibility.

9. The notations to those orders referred to child support. When the first set of proceedings began in 2016, the mother was seeking to relocate to City A. She then unilaterally relocated and it is against that background that there have been difficulties during those first proceedings with respect to interim orders, given the distance between the parties’ homes and the very young age of X.

10. The notations with respect to child support refer to the parties entering into a binding child support agreement. The father was to continue to pay the periodic child support of $250 a week in accordance with their private agreement, and then upon the mother returning to Melbourne with X to live, upon him commencing primary school, the father would increase that sum to $500 a week. The agreement also addressed school fees.

11. At notation C the parties had also agreed, without admission, to the extension of their respective intervention orders against each other for a period of two years, with the intention of addressing that at the next mention before the City A Magistrates’ Court.

12. There were a few matters that were not agreed between the parties. After hearing argument on that day, I made orders of the Court which included that on or before X’s fourth birthday, the parties do all acts and things to enrol X jointly at a school in Melbourne for his primary school within 15 kilometres of the Melbourne Central Business District and that the mother relocate her residence, for the purpose of order 1, to a residence within 30 kilometres of the Melbourne Central Business District, no later than one month prior to X commencing primary school.

13. The child support matters are notations because the Court did not have jurisdiction to make those as orders as there was no child support departure application before the Court.

14. It is clear from the text messages exchanged between the parties that are annexed to various material, that that is one of the issues that has been in dispute between the parties.

15. The parties have very different versions and reasons for the problems that arose with respect to the orders soon after they were made. There is correspondence within a month of those orders being made, with the mother seeking that the father attend mediation to sort through various issues.

16. When the matter came before me on 21 August 2019 with respect to the father’s contravention applications, it was clear that the matter had escalated to such a degree that both parties were seeking changes to the final orders that were made. The father’s concern is that he has not had any time with X since early March 2019, some seven months ago. He brought the contravention application, as I indicated, in mid‑March 2019 and certainly, there were some delays with respect to those applications because of the difficulties with serving the mother.

17. The mother makes very serious allegations against the father, such that when the matter came before me on 21 August 2019, I determined that the Independent Children’s Lawyer should be reappointed and that given both parties now are self‑represented, I made several orders, including directing the Registrar to issue subpoenas to Victoria Police. I also directed the Registrar to request the Registrars of the Magistrates’ Court of Victoria to produce a copy of their files at both Suburb B and City A.

18. I also made an order pursuant to s.69ZW of the Family Law Act 1975 (Cth) to obtain information and documents from the Department of Health and Human Services (“the Department”) .What the mother had indicated was that there is a current investigation on foot, and that also the Sexual Offences and Child Abuse Investigation Teams (“SOCIT”) had carried out an investigation which she understood was still on foot with respect to the allegations that she made in March 2019 that X had disclosed to her after returning from spending time with the father, that his father had hit him on the bottom, causing bruises.

19. The matter came before me today for an interim hearing and several documents during the course of these proceedings have been tendered before the Court. I have accepted as exhibits the entire files produced by the Department and the police records that have been tendered, as well as records from the Magistrates’ Court of Victoria.

20. The matter had originally been listed before me on 16 September 2019 for interim hearing, but given that the documents from the Department had only just become available and was some 80 pages, it was necessary to adjourn the matter to today to give the parties and the Independent Children’s Lawyer the opportunity to inspect those documents, in addition to the other documents that have been produced under subpoena. I note that there were some further documents from the Magistrates’ Court of Victoria produced this morning and the parties were given an opportunity to look at those before the interim hearing began.

21. In the exhibits, the parties have flagged particular pages of the documents that they wish to bring to the Court’s attention, and those are tagged and marked with “F” for the father and “M” for the mother. They also include some notations by the parents in accordance with the directions I gave them on Monday. Due to the volume of that material, I have not had the opportunity to consider all of that material before me, but will do so and will be giving further reasons on Monday.

22. The mother was present in Court this morning when the interim hearing began, but left the courtroom during the submissions being made by Counsel for the Independent Children’s Lawyer. When the mother became quite upset, I stood the matter down to give the mother an opportunity to compose herself and return to the Court. Volunteers from the Court Network support service were also in Court assisting the mother. The mother left the courtroom and subsequently left the Court building.

23. Counsel for the Independent Children’s Lawyer and also a Court Network support person spoke to the mother and told her that if she did not return to Court, the hearing would continue in her absence. I am informed by Counsel for the Independent Children’s Lawyer that the mother said she would not return to Court today and that she had been put on notice that orders may be made in her absence.

24. There were further attempts and opportunities given to the mother for her to return. Counsel for the Independent Children’s Lawyer also canvassed with the mother her attending the hearing this afternoon by telephone. The mother indicated to Counsel for the Independent Children’s Lawyer that she would not be able to advocate for herself by telephone.

1. I directed my deputy associate to telephone the mother in open Court whilst I took a brief adjournment, to see if she would attend by telephone. I am told that after my deputy identified herself as being from the Court, the mother hung up on her. So in those circumstances, I continued to hear submissions from Counsel for the Independent Children’s Lawyer and also for the father.

2. The mother’s case is that she considers the father to be an unacceptable risk to X and that her position is that the father should have supervised time at the contact centre in City A. The father’s case is that the mother will never support his relationship with X and that she has a disregard for court orders and court proceedings and that the only way for X to have a meaningful relationship with both parents, is for X to live with him.

3. The Independent Children’s Lawyer’s view today is that the father’s time should recommence immediately in accordance with the final orders made last year and does not support an immediate change of residence at this stage.

4. The mother is aware of those competing positions as they were outlined prior to her leaving Court. One of the controversies that has been raised this morning was with respect to the Department’s position. Unfortunately their s.67Z response dated 16 September 2019 was somewhat ambiguous about what their position was, and it was the mother’s position that that document supported her understanding that essentially, there should be no time or supervised time.

5. In those circumstances, I caused my Chambers to make inquiries of the Department’s liaison officer as to whether she could speak to the Department worker to clarify the Department’s position. Ms C helpfully did so. She came into Court and gave evidence with respect to that. She indicated that, having spoken to the manager of the author of that report, both at the time of the report being written and afterwards, that the intention had been to indicate that the Department supported the father spending time with X in accordance with the final orders made last year.

6. Aside from the documents from the Department, police and the Magistrates’ Court of Victoria, the other exhibits before me include the psychiatric assessments carried out of the parties in the previous proceedings by Dr D and two family reports prepared by Mr E.

7. As I have indicated, the matter resolved, apart from the limited issues I have determined at the parties’ requests on that day, by consent. Therefore, the evidence of the experts and the parties has not been tested. It is also clear that the mother is making very serious allegations about risk of harm which the Court cannot ignore. In order to make the determination in X’s best interests, it will be necessary for me to review all of that material.

8. I am satisfied that in order to progress this matter urgently, I am going to make the following orders. I indicated earlier this morning that I would make a further order pursuant to s.69ZW of the Family Law Act to obtain the documents with respect to the intake that was opened on 17 September 2019 and closed on 19 September 2019, and I will make that order.

9. I will also order that the parties attend for an urgent family report, noting that both parties are self‑represented and indicated that they are unable to afford to return to Mr E for a third report. That report will be available in the middle of November 2019. In those circumstances, I am going to list the matter for an urgent trial for three days commencing on 9 December 2019, and I will make my usual trial directions with respect to that.

10. I will also, as I have discussed with Counsel for the Independent Children’s Lawyer this afternoon make orders pursuant to s.102NA of the Family Law Act 1975 which addresses cross‑examination of parties where there are allegations of family violence and one or more parties are self‑represented.

11. I am satisfied that the mandatory protections under s.102NA apply, namely s.102NA(1)(c)(i) and s.102NA(1)(c)(ii), as the father has been convicted of charges and placed on the diversion program, and there were also mutual final family violence orders with respect to the parties. The effect of this mandatory provision is that if the parties are self‑represented, then they will not be able to cross‑examine each other about the family violence issues, as the cross‑examination must be conducted by a legal practitioner acting on their behalf.

12. To aid in that process, the Commonwealth Government has set up the Commonwealth Family Violence and Cross‑Examination of Parties Scheme to provide representation for the parties. Both parties will need to make urgent applications to Legal Aid Victoria pursuant to that Scheme. I will direct that both parties do so within seven days, given that any such application is ordinarily to be made at least 12 weeks prior to the final hearing.

13. Given that it is slightly less than 12 weeks to the final hearing, the parties will need to do this urgently. I have also caused my Chambers to inquire with Legal Aid as to whether they would be able to accommodate an urgent application if made, and they have indicated that they would. It is a matter for the parties to make those applications. If one or both choose not to, then the consequence of that is not being able to cross‑examine at trial. The Scheme is not means or merit tested, though the parties may be required to contribute if the Legal Aid Commission assesses that that should be the case.

14. This falls into the category of cases where it is going to be important for the evidence of the parties to be tested, which can only occur with cross‑examination, and also for the evidence of the experts to be tested. It is not a matter than can simply be left in abeyance until that time, some three months away.

15. One of the things that I am being asked to do is to place X in the father’s care. One of the issues to consider is how practically that could occur, if I am satisfied that that is in X’s best interests, and how to minimise any trauma should that be the course that I decide is in his best interests, pending further orders. As I foreshadowed with the Independent Children’s Lawyer and the father this afternoon, I intend to order the mother to attend Court on Monday with X for the purposes of attending a s.11F intervention with a family consultant. I will direct her to bring X to the Child Support Dispute Services section at 9.00am on 23 September 2019 and I will direct that the father attend Child Support Dispute Services at 9.30am.

16. The purpose of the s.11F intervention will be for the family consultant to conduct brief observations of X with the parties, and particularly with X and the father, and to then provide oral evidence to the Court of those observations.

17. I will, on Monday, after having heard from the family consultant, assuming that the mother brings X to Court, deliver reasons and make further orders with respect to the time that X should spend with both parents and his living arrangements pending the trial in December. I acknowledge that there is a real possibility that the mother will not attend Court on Monday and she is not yet on notice of this order.

18. I am going to direct that my Chambers take out the orders made today urgently and email a copy of the orders to the mother, drawing her attention to them. If the mother brings X to Court on Monday and if I determine that X should be living with or spending time with the father, on Monday, then the Child Dispute section can assist with that transition. That would be far less traumatic for X than issuing a recovery order which involves the Australian Federal Police having to attend to remove X from the mother’s care if the mother refuses to cooperate and provide X. I will make a notation, so that it is very clear to the mother, that if the mother fails to bring X to Court on Monday to the Child Dispute section as directed, then a recovery order may issue removing X from her care.

19. As one of the issues of concern in this case is the mother’s capacity to facilitate X having a relationship with his father and her willingness and ability to comply with Court orders, and there are concerns that have been raised in the material and in the exhibits as to the mother’s bona fides in making the allegations that she has, it will be necessary for me to give careful consideration to all of the material and the exhibits before me, as allegations of family violence and allegations of risk to children, whether it be through family violence or other abuse, is an extremely serious matter that the Court must consider, even on an interim basis when the evidence is not tested. The Court cannot ignore those allegations and my task will be to assess the competing allegations of unacceptable risk in determining what interim orders to make.

20. I will list the matter for further hearing on Monday to hear from the family consultant, to hear any further submissions and then to rule on the interim issues before me.

21. The father makes an oral application for X to be placed on the watch list. He raises concerns about the mother’s reaction in Court and leaving the courtroom and refusing to return, and the fact that she is a customer service officer and has X’s passport. He has concerns that over the weekend she may attempt to leave the country with X. Clearly, this is an application that is made orally and made without notice to the mother, but in the circumstances I am satisfied that it is in X’s best interests to make that order to place him on the watch list, on an ex parte basis as far as the mother is concerned. That is a matter that can be further reviewed, with the mother having opportunities to make submissions with respect to it.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  15 October 2019