Children’s Lawyer elevates case to Family Court

Children’s Lawyer elevates case to Family Court

Harris & Hadfield

REASONS FOR JUDGMENT

Introduction

1. On 24 February 2012, a member of the then Federal Magistrates Court of Australia delivered reasons for judgment in a parenting application between these parties: [2012] FMCA 2. In summary, the court found that the father’s allegations of the children being at risk in the mother’s care were without foundation. The court further found that the father’s behaviour and conduct gave rise to an emotional and psychological risk of harm to the children and a risk that would impact in a severe and negative way upon the mother’s ability to parent those children.
2. The orders made on 24 February 2012 included that the mother should have sole parenting responsibility for the children, for the children to live with the mother and for there to be no time spent with the father. For present purposes it is sufficient to record that order 4 made on 24 February 2012 provided that:

(4) A and B spend no time with the husband and communication between A and B and the husband be solely as provided for in these orders.

3. On 14 March 2014, a Full Court of the Family Court of Australia unanimously affirmed those parenting orders: [2014] FamCAFC 41.
4. On 15 March 2017, the father filed an initiating application in this court together with an affidavit made on 14 March 2017, a notice of risk and two subpoenas addressed to the children’s school, (omitted) School, and the Department of Health and Human Services (the DHHS) respectively. By his initiating application, the father sought the dismissal of previous orders, sole custody of the children and a range of ancillary relief.
5. In the period between 17 April – 28 April 2017, the mother filed a response to the father’s initiating application, a notice of risk, a contravention application and two affidavits. The mother’s affidavits depose to a series of matters which, if accepted, may support findings of what may be characterised as serious contraventions by the father of the orders that were affirmed by the Full Court on 14 March 2014.
6. While the father’s application was listed for mention on 10 May 2017, the mother’s contravention application was listed for 28 August 2017.
7. These reasons explain the orders that were made on 26 May 2017. In light of the matters addressed in these reasons, they have been prepared in circumstances of some urgency.

Mention Hearing – 10 May 2017

8. At the mention hearing on 10 May 2017, the mother was represented by counsel while the father was self-represented (as he was before the Full Court).
9. By the time of the hearing on 10 May 2017, the DHHS had provided a report addressing the notices of risk. Copies of its response were provided to the parties. Contextually, the matters raised by the DHHS’s response recognised that, since contact with Mr Harris has resumed, the children had become aggressive towards their mother. In the course of the hearing, the father referred to video recordings taken by the children which were said to evidence the scale of the conflict with the mother. How, why or at whose suggestion the children came to make any such recordings has not been explored.
10. The DHHS’s response further observed that the father has acted in breach of the parenting orders (which he denies), and has since involved the children and third parties in a campaign against the mother. The reference to third parties appears to be a reference to the father’s parents in providing means of communication to their grandchildren. The DHHS’s report states that the elder child intends to live with the father, despite there being in operation an intervention restricting the father’s contact. These matters also remain to be tested at a hearing.
11. As concerns the alleged breach of the parenting orders, there is evidence which, if accepted, would suggest the father has provided one or both of the children with laptop computers and sim cards for their mobile phones (with instructions to dispose of the sim card after use). The father, having provided those means of contact, then appears to mount a defence to the contravention application based upon a narrow interpretation of the term ‘communication’ as employed in those orders. As I understood the argument, it is said that there is nothing the father can do should the children choose to contact him. Communication has escalated with the children travelling from their coastal residence with the mother to the father’s home in Melbourne. Again, it is then asked, what is the father expected to do when the children arrive at his door? Having facilitated communication in one or more ways (as is being alleged, but not yet decided), the current situation is highly problematic.
12. In the course of this hearing, it emerged that there were also proceedings on foot before the Magistrates Court at Korumburra with respect to alleged contraventions by the father of intervention orders which remain operative. Those proceedings were listed for hearing on 11 May 2017. In those circumstances, the father sought, and the parties were granted, leave to inspect the documents produced in response to the subpoenas that had been issued by the father. I also allowed the father to apply for leave to copy the DHHS documents but required the father to identify each document that he sought to copy. As events transpired, when the matter was re-listed on 26 May 2017, the father had yet to identify any document that he sought to copy.
13. Given the intersection of issues raised by the mother’s contravention application and the father’s initiating application respectively, I raised with the parties the question whether it would be more appropriate for the contravention application to be heard in advance of and separately from the father’s initiating application. At first sight it appeared that, if proved, the contravention allegations may inform questions whether the father’s application to set aside or vary the final parenting orders could be supported in the face of proven misconduct in breach of those final parenting orders.
14. As the father was self-represented, I raised with him that he might give consideration in advance of the contravention application whether he would seek to raise a privilege against self-incrimination and whether, if he did so, the court might in any event, issue a certificate pursuant to s 128 of the Evidence Act 1995 (Cth). I raised that issue in light of the matters deposed to in the mother’s affidavits, the seriousness of those matters and because I regarded the contravention application as trenching upon parenting issues in a way that meant the application was notinter partes in the ordinary sense – the paramount interests of the children overlapping the contravention allegations made against the father: cf M v M (1988) 166 CLR 69, 76 (per curiam).
15. For similar reasons, an order was made pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (Act) for the appointment of an Independent Childrens’ Lawyer. I note that the children are now aged 12 and 14 years respectively and may seek to express their views upon the matter. In addition, the court reserved for further consideration whether orders for a further family report should be made.
16. In light of the evident and significant conflict arising between the parents and the apparent need to address the matter with some urgency, the court undertook the responsibility of supplying the Independent Childrens’ Lawyer with copies of the primary set of documents that were likely to be needed for the conduct of the matter. Although the parties were afforded an opportunity to supply further documents to the Independent Childrens’ Lawyer, only the mother has done so.
17. The court also raised with the father the principles established in Rice v Asplund [1978] FamCA 84; (1979) FLC 90-725, the need for him to demonstrate special circumstances sufficient to warrant any variation of the final orders made on 24 February 2012 and whether there should be the hearing of a preliminary issue upon those principles or a final hearing: see generally Jiang & Yip [2017] FamCA 224, [38]-[40] (Berman J), citing Millar & Harrington [2008] FamCAFC 150; (2008) FLC 93-383; Lowe & Lowe (Unrep’ HCA 6 April 1990, p.11) ; Poisat & Poisat [2014] FamCAFC 128.
18. I also raised with the father whether his affidavit affirmed on 14 March 2017 should be struck out having regard to the scandalous nature of the matter which, in my view, it contained. I informed the father that the purpose of an affidavit was to identify evidence and not to make commentary or what he considered to be submissions upon the matter. The father responded in terms of his understanding that an affidavit was not the place to “tip a bucket” on persons with prior involvement in the parties proceedings. Although I would have dealt with this issue on 10 May 2017, I deferred the issue for later consideration as the father, being a self-represented litigant, might be assisted by allowing him some time to reflect on the matter.
19. A further matter raised by the father concerned his desire to issue a further eight subpoenas for the purposes of the proceedings. In all the circumstances, I determined that the father should be required to place on affidavit an explanation of the basis on which he sought to issue such an extensive array of subpoenas, including that he identify the parties to whom he proposed to direct subpoenas.
20. Orders were made on 10 May 2017 which were directed to facilitating the regulation of this matter towards a hearing of the mother’s contravention application and the manner of disposition of the father’s application to set aside or vary the parenting orders made in 2012.

Mention Hearing – 26 May 2017

21. For the greater part, the orders made on 10 May 2017 have not been observed. Neither the father nor the mother filed submissions addressing the manner of disposition of the contravention application or the application to vary the final parenting orders. The failure to comply with those orders speaks to the difficulties which attend this complex matter. Counsel for the mother made clear that he had no instructions to prepare submissions. The mother’s solicitors did however file an index indicating the further documents that had been served upon the Independent Children’s Lawyer. The father did not file any submissions. Nor did he file, as required, an affidavit that identified the persons to whom, or why, he wished to serve a subpoena.
22. The court was, however, assisted by considered submissions from the Independent Childrens’ Lawyer and their counsel. It is convenient to arrange the reasons which follow in parallel with those submissions.

(1) Transfer to the Family Court of Australia

23. The Independent Children’s Lawyer submitted that the proceeding ought to be transferred from this court to the Family Court of Australia. Transfer was supported by counsel for the mother. I note the position adopted by the father was that he had no objection to transfer, provided that the court to which it was transferred was ‘competent’.
24. The court is authorised to transfer a proceeding to the Family Court on the application of a party: see ss 39(2)(a), 40(1) of the Federal Circuit Court of Australia Act (Cth). Part 8 of the Federal Circuit Court Rules 2001 concerns the subject, Transfer of Proceedings. Relevantly, paragraph 8.02(1) concerns the subject Transfer to Federal Court or Family Court. It reads:

The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or to the Family Court.

25. I accept the submission of the Independent Childrens’ Lawyer that, on any assessment, the magnitude of the trial of the mother’s contravention application is a matter for which the resources of this court are not equipped and with which the resources of the Family Court are equipped. Case management of the disposition of any penalty hearing and then, any preliminary, or final, hearing of the father’s parenting application will also extend the matter.
26. There will be an order for transfer in accordance with r 8.02.

(2) Contravention application be heard first

27. The submissions made by the Independent Childrens’ Lawyer include that the mother’s contravention application should be dealt with in advance of any consideration of the father’s substantive application. This application was supported by the mother.
28. While I agree in that submission, it is unnecessary to decide the question. It is unnecessary because I have accepted the submission that it is appropriate to transfer the matter to the Family Court.

(3) Psychiatric evaluation of father

29. The Independent Childrens’ Lawyer addressed a proposal that had originally been made on behalf of the mother that there should be a further psychiatric evaluation of the father.
30. Those submissions conclude, in effect, that there is no utility in a further evaluation of the father’s current psychiatric state.
31. While I agree generally in that submission, if, upon the hearing and determination of the contravention application, it were determined that the husband had contravened orders of this court, it may be that, relevant to the question of penalty, consideration might be given to the father’s psychiatric condition.

(4) Timing of further family report

32. The Independent Childrens’ Lawyer addressed the making of an order for a family report and that this be obtained as a matter of urgency. It may be noted that a detailed family report, to which the father has taken objection, was prepared by Mr V.
33. As I saw the matter, the necessity for a family report arose most directly in the context of the father’s initiating application and not the mother’s contravention application. Further, the reasoning in Hart & Sellwood [2016] FamCAFC 254, [37] provides a recent illustration of why the necessity of a family report may arise at different stages of a proceeding where Rice & Asplund principles are in issue.
34. In the combined circumstances that the proceeding is being transferred to the Family Court and that the contravention application was likely to proceed in advance of the father’s initiating application, I concluded that the case management of family reporting was a matter best left for further consideration in that Court.

(5) Affidavit struck out

35. As noted, on 10 May 2017, I had raised with the father the question whether his affidavit affirmed on 18 March 2017 should be struck out pursuant to r 15.29(1) of the Federal Circuit Court Rules 2001.
36. Rule 15.29(1) confers power on the court to order that material be struck out of an affidavit at any stage in a proceeding if the material is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative, or where it contains opinions that the deponent is not qualified to give. The power to order that material of that kind be struck out at any stage is longstanding.
37. In HRF Nominees Pty Ltd (In Liq’n) v Pavjo Pty Ltd [2014] VSC 93 at [57], Derham As.J identified a series of authorities dating from 1873 which support the principle that allegations made for the purpose of abusing or injuring an opposite party and allegations which are indecent or offensive, were scandalous within the meaning of the rule and liable to be struck out, as was matter irrelevant to the claim: see also Sims v Jooste (No.3) [2016] FCCA 1751, [24]-[30] (Lucev J); Sweeney v Sweeney [2016] VSC 483, [26]-[27] (Digby J); SZVCP V Ng [2017] FCA 455, [34] (Flick J).
38. As noted, I did not deal with this issue on 10 May 2017 as I considered it appropriate to afford the father some opportunity to reflect upon the matter. I raised the question of that affidavit being struck out in the added circumstance that there is on foot a contravention application by the mother. It occurred to me that there was a live question whether it was in truth inimical to the father’s interests for that affidavit to remain on the court file in the face of that pending contravention application.
39. As the submissions of the Independent Childrens’ Lawyer observe, a report upon the psychiatric condition of the father has been provided by Dr E. In October 2011, the opinions of this specialist included that the father’s psychological functioning was disturbed and that anyone who disagreed with the father was likely to be complained about or to be seen by him as disreputable and needing to be removed from the case. The father’s conduct during the course of this hearing – in particular, his response to the submissions made by the Independent Childrens’ Lawyer – served to illustrate the force of the latter opinion of Dr E expressed above.
40. The father’s affidavit affirmed on 14 March 2017 was also confirmatory of Dr E’s opinion that the father is unrestrained in his criticism of those who have been involved in the conduct of the proceedings to date and of the persons who have given evidence. I will not catalogue the approach taken in the father’s affidavit to the history of the matter.
41. I was more concerned that not striking out the affidavit would promote the prospect that the trial of the contravention and initiating applications would be prolonged significantly by the presence of that document as part of the court record. It would be inimical to the orderly case management of those applications to permit the affidavit to be employed as a vehicle for the father’s unceasing criticism of others in the earlier proceeding. Equally, I saw no point in striking out only part of the affidavit, preferring the view that it would be more efficient for the father to start anew and to be allowed the opportunity to prepare his evidence which was contained in a single trial affidavit. There would be no advantage to the parties or the court to be referring back and forth between two affidavits, one of which had been (for the most part) struck out.
42. In all of those circumstances, I ruled that the affidavit of the father affirmed on 14 March 2017 be struck out. However, I have directed that the affidavit remain on the court file in a sealed envelope marked not to be opened except by order of the court.
43. It will be a matter for the father whether he chooses to adduce evidence in a properly considered, ordered and objective form.

(6) Appointment of Independent Childrens’ Lawyer

44. Next was a trenchant objection by the father with respect to the appointment of Mr Weston as Independent Childrens’ Lawyer. Conformably with the expert opinion of Dr E, Mr Weston – who acted in the earlier proceedings – now draws the father’s ire. The circumstance that the Independent Childrens’ Lawyer had been appointed to represent the best interests of the children may produce the consequence that that lawyer advances submissions which are seen as being opposed to the father’s objectives. That is one of the very reasons for such an appointment: see para 68LA(2)(a)-(b). Mr Weston may bring an independent mind to what evidence should be adduced and submissions made which enable the court to more fully consider what it is that would be in the best interests of these children, whether and why rights which the father seeks to assert should yield to the paramount interests of those children: cf ss 60B(2), 60CA.
45. I reject the father’s objection application. There is no rational basis that I can discern why it is that Mr Weston has any conflict in representing the children. The circumstance that Mr Weston’s written and oral submissions were expressed in considered and direct terms only fortified me in the conclusion that he and his counsel have a demonstrated ability to act in the children’s best interests.

(7) Father’s application to appeal to High Court of Australia

46. The father raised, in emotive terms, a demand that I make an order granting him special leave to appeal to the High Court of Australia from (or alternatively, for a judicial inquiry concerning) the order of the Full Court affirming unanimously, the final parenting orders of this court made on 24 February 2012.
47. The time within which an application could have been made for special leave to appeal has long since passed. More relevantly, it is beyond power for a judge of this court to grant such leave. It is a matter for the High Court whether it would grant special leave, out of time, to appeal the orders of the Full Court. Insofar as the father seeks a judicial inquiry, that is clearly a matter which is beyond power.

(8) Injunction

48. The final issue raised concerned an interim injunction upon the father from contacting the children at all under further order. The application was made by the Independent Childrens’ Lawyer on the stated basis that it was necessary to prevent further harm to the children.
49. I invited the Independent Childrens’ Lawyer to prepare and provide a minute of the proposed order to the father. I raised with the father the seriousness of the matters which were now before the court and that he should give proper consideration to that proposed minute as soon as it was provided to him. The Independent Childrens’ Lawyer identified that the material on which the application was made comprised the documents produced in response to the subpoenas served upon the children’s school and the DHHS. The matter was then stood down in order that the minute of proposed order could be prepared and consideration given to the documents produced on subpoena.
50. As the father requested, and in any event, I considered in detail the documents provided on subpoena by each of the children’s school and the DHHS. The nature of the conflict in this matter is of grave concern. It is not confined to the parents but extends to the children and, significantly by the children amongst themselves and towards their mother.
51. As the submissions of the Independent Childrens’ Lawyer recognised, another opinion expressed by Dr E was that one of the most worrying features of the matter was that the children were likely to be harmed by what essentially amounted to the father’s vexatious pursuit of the mother. Dr E considered that this pursuit threatened to endanger the children’s view of her and to destroy their relationship with her in the process. Dr E concluded that the father represented a risk to the children and that they may require protection from their father. This expert opinion evidence formed part of the body of evidence upon which the final parenting orders were made.
52. The court is authorised to grant an injunction for the personal protection of a child or a parent of the child: see sub-s 68B(1)-(2).
53. The Independent Childrens’ Lawyer and the mother’s counsel were agreed that upon the hearing of an interim application this court was entitled to determine the application notwithstanding the necessity of proceeding in the face of disputed issues of fact: Goode & Goode [2006] FamCAFC 1346; (2006) 36 Fam LR 422, [108], [110].
54. Goode’s case holds that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child: (2006) Fam LR 422, [81]. As the Full Court of the Family Court recently confirmed, authorities which refer to Part VII as prescribing a legislative pathway and as imposing an obligation upon a court applying Part VII to follow a legislative pathway, are properly to be understood as emphasising that the statutory considerations relevant to a particular case must be considered and applied as directed by the Act: see, for example, Oswald & Karrington [2016] FamCAFC 152 at [47] (Ainslie-Wallace, Aldridge & Kent, JJ).
55. The Independent Childrens’ Lawyer had raised a serious question to be tried with respect to the risk of harm to the children and the need for orders that may protect them. I regarded the primary considerations set out in sub-s 60CC(2) as informed in significant measure by the issues necessarily decided by the final parenting orders made in February 2012 and confirmed by the Full Court in 2014. This conclusion largely obviated the need for further detailed consideration of the additional considerations presented by sub-s 60CC(3). I gave consideration to those matters before pronouncing orders on 26 May 2017.
56. Where lies the balance of convenience? The evidence contained in the school and the DHHS documents that were relied upon by the Independent Childrens’ Lawyer indicate reason for concern. However, there are occasions where, in determining the balance of convenience, the court should take the course which appears to carry the lower risk of injustice in case it should appear at trial that the injunction ought not to have been granted: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, at 680-681; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 59, [248] (Heydon J diss’). In my view like considerations are in play where any further orders would impact most directly upon the children.
57. When the hearing of the matter resumed, the father submitted that it would be as well if he were taken immediately into custody on the stated basis that the court would then see “what happens when I’m in custody.” The import of the father’s statement was that the children would be at his home by day’s end with the result that he would then immediately be in breach of any order made on that day. If the father’s stated objective was to place himself in a position where he could thereafter assert that the children’s mother had achieved the result that he had been incarcerated, this would have been a wholly inaccurate statement of the position. The application for an injunction was in fact made on behalf of the children by their lawyer. It was rightly made.
58. When the oral application for an interim injunction was made on 26 May 2017, it was said that the father was already in the process of making arrangements that would frustrate its operation by reason that the children were already being encouraged to travel from the mother’s home to the paternal grandparent’s home. The prospect of the children being removed forcibly from his residence by officers of the Australian Federal Police appeared not to trouble the father. I regarded this as indicating his inability to perceive the risk of harm which his conduct may have upon the children.
59. In the circumstances in which the application was made before me, one consideration in the grant or refusal of an injunction may be the utility of doing so. The injunction sought would have expressed in prohibitory terms that which is already stated in mandatory terms by the final parenting orders. Those final parenting orders are in place and those orders have been confirmed by the Full Court.
60. The application for injunctive relief was made in the face of a pending contravention application and proceedings in the Magistrates Court for allegations of breach of intervention orders. The further duplication of enforcement proceedings did not appear to me to promote the children’s best interests or to do so in a way that would further their interests.
61. I concluded a preferable approach was to order, for the avoidance of doubt that order 4 made on 24 February 2012 remains in full force and effect: cf Aiden & Grant [2016] FAMCA 861 (Bennett J). Should the father be found to be in breach of the final parenting orders, the current events may become highly relevant upon the question of penalty and the further question whether the father can establish an entitlement to variation of the current parenting orders. As presently advised I find it difficult to see why a person who arrogates to him or herself an entitlement to act in flagrant disregard of formal parenting orders should at the same time be entitled to a favourable exercise of judicial discretion to vary those orders, particularly where they have been unanimously affirmed on appeal by a Full Court.
62. As the documents produced on subpoena by each of the children’s school and the DHHS represented the evidence upon which my determination of the application was based, and because those documents were adduced into evidence as exhibits, they have been placed on, and will be quarantined in, the court file.
63. For completeness, I should state that I have disregarded a document provided by the Independent Childrens’ Lawyer which was said to be notes prepared upon an examination of the documents produced on subpoena. While I accepted those notes as representing an aide memoire, they are secondary evidence of the contents of the documents themselves, and as I have been able to examine the primary documents, the secondary source material can be of no greater assistance.
64. In the circumstances, I have noted in the orders made on 26 May 2017 that the mother’s contravention application filed on 28 April 2017 be listed with such priority as the Family Court may afford.