ABULAFIA & GEARY

[2016] FamCA 113

FAMILY COURT OF AUSTRALIA

ABULAFIA & GEARY [2016] FamCA 113

FAMILY LAW – CHILDREN – Interim Parenting – With whom the children spend time – Where the father’s time with the child previously suspended – Where the father was convicted of recklessly causing grievous bodily harm to the mother and failing to stop and assist – Where criminal proceedings have concluded – Expert Report prepared prior to conclusion of criminal proceedings available – Where the father now seeks a resumption of time with the child – Best interests of the child – Benefit to the child of a meaningful relationship – Need to protect the child from harm – Family violence – Impact of any time with the father upon the mother’s parenting capacity – No relationship between the child and her father – Father’s parenting capacity – Need for further assessment by the Expert.

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC.

Deiter & Deiter [2011] FamCAFC 82.
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.

APPLICANT: Mr Abulafia

RESPONDENT: Ms Geary

INDEPENDENT CHILDREN’S LAWYER: Mr MacDiarmid

FILE NUMBER: PAC 395 of 2013

DATE DELIVERED: 9 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Mclachlan Thorpe Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Macdiarmid Family Law Specialist

Orders

1. The Fathers Amended Application in a Case filed 5 February 2016 is dismissed.

2. The Independent Children’s Lawyer is to forward to chambers within 7 days, consent orders with respect to an updated Expert Report by Dr G.

3. The final hearing of this matter be expedited noting that it is estimated to be a 5 day trial and that the final hearing dates should be allocated after June 2016 when it is anticipated the report of Dr G will be available.

4. The matter be relisted for further trial direction after the release of Dr G report and in the event that it becomes apparent that Dr G report may not be available prior to the hearing dates, the parties and each of them and the Independent Children’s Lawyer has liberty to relist the matter.

5. The mother’s application for costs is reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Abulafia & Geary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 395 of 2013

Mr Abulafia

Applicant

And

Ms Geary

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns M (the child), a little girl of three and a half.  The child’s parents, who are in their 40s, had a brief relationship, for around 12 months, which ended when the child was a couple of weeks old.  When the child was nine months old, orders were made for the father to spend some supervised time with her and this occurred for a period of two months.

2. On 17 May 2013, when the child was almost a year old, the father recklessly caused grievous bodily harm to the mother by knocking her over with his car and running over her leg and failed to stop and give necessary assistance to her in circumstances where he ought reasonably to have been aware of the impact which caused that harm.  Following this incident, the child’s time with her father was suspended and an Expert Report was ordered.

3. When the Expert Report was released, the suspension of the father’s time with the child continued and the father was granted liberty to relist the matter on seven days’ notice after the conclusion of his criminal trial.  The father’s criminal trial concluded in August 2015 and the father was found guilty of recklessly causing grievous bodily harm to the mother and failing to stop and assist.  He was sentenced on 23 October 2015 to a two-year custodial sentence in respect of each offence to be served concurrently by way of an intensive correction order.

4. The father then sought orders for his time with the child to recommence initially by way of supervised time, to be increased incrementally so that after eight weeks the child spend 48 hours with him unsupervised.  The mother seeks that the father’s application for time be dismissed and the independent children’s lawyer does not support the application.  The matter for me to determine is whether it’s in the best interests of the child to spend time with her father as he proposes in his orders.

Background

1. The father, who is 46, is of Country H background and came with his wife to this country in 2001.  The father is a qualified professional and his wife is a health professional.  They have two adolescent children. 

2. The mother and father met through an online service in around mid-2011.  The father made various false representations about his personal circumstances, in particular, that he was a single man.  A sexual relationship between the two commenced and in September 2011 the mother became pregnant.

3. There are many matters in dispute between the parties about the nature of their relationship before and after the child’s birth in 2012 which are unable to be resolved on this interim basis.  It is common ground that when the parents separated, the child M was only a few weeks old.  Initially the child spent some time with the father after separation for a few months.  Although the father’s wife was initially, understandably, upset about the circumstances surrounding the child’s conception, as I understand it, she nevertheless feels a strong bond with the child, and following a short separation after the child’s birth, the two have reconciled.

4. On 11 March 2013 orders were made in this Court for the father to have supervised time with the child each Wednesday and Saturday, for three hours on each occasion, with such time being supervised by the father’s wife.  The father was also restrained from coming within a kilometre of the mother’s place of residence except for the purposes of collection and return of the child.  The father’s time with the child commenced shortly thereafter.  It is also common ground that the mother arranged for the father’s time with the child to be the subject of surveillance and a number of recordings of the time between the child and her father were made by the person engaged on the mother’s behalf.

5. On 22 April 2013 a family consultant made observations of the father with the child for the purposes of preparing a Children and Parents Issues Assessment as part of the Child Responsive Program.  In a memorandum before the Court, the family consultant described the father interacting verbally and otherwise in an appropriate manner having regard to the child’s developmental level, but noted that the child generally did not respond to him.  The family consultant observed that the mother appeared to be the child’s primary attachment figure, and in contrast, the child did not show similar signs of attachment to the father, which the family consultant said would be consistent with the limited time the child had spent with the father post-separation.

6. On 17 May 2013 the father parked his car a short distance from the mother’s house and approached the house on foot, in contravention of the March 2013 orders.  His presence was observed by the mother through her front door and she left the home to investigate the identity of the figure she had seen.  The mother became aware that it was the father and he quickly returned to his car, chased by the mother and her brother.

7. The father was sitting in his locked car when the mother arrived, demanding to know why he was in the vicinity at the time.  The mother was highly agitated and angry and wrenched the windscreen wipers from the father’s car.  The father’s car impacted with the mother and caused her very serious injuries.  They are described by the sentencing judge in his findings on 10 August 2015 as “a horrifying crushing of her leg together with serious head injuries”.  The injury to the mother’s leg was caused by the father driving over it in his car.  The father was found to be reckless in driving off without inquiring as to the position of the mother relative to him.  The trial judge also found that the father must have known of the nature of the impact of his car upon the mother.

8. The mother was hospitalised and suffered a compound fracture to her leg, a fracture to her skull and other injuries to her head, including to her brain.  She was placed in an induced coma for two days and has had four operations to her leg.  Following discharge from hospital, the mother was wheelchair-bound for seven and a half months and at the time of this hearing says she still suffers pain as a result of the injuries and suffers post-traumatic stress disorder and sensory loss arising from the head injuries.

9. In his remarks on sentence, the trial judge says there is no doubt that as a result of the acts of the father, “very substantial damage has been done to the mother, not only in terms of her physical injuries, which are extensive, but also psychologically, which are substantive, and in her impairment with her child”.

10. The parties attended upon Dr G, the court-appointed expert, in November 2013.  At that stage, the father was describing the incident of 17 May as an “accident” and indicated that he would be defending the charges against him.  In these circumstances, the expert did not explore the circumstances surrounding that incident. 

11. Overall, Dr G was of the opinion that:

    In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future.

    In his view, those principles applied in this case.  However, he was unable to make findings about a number of significant matters, in particular related to the trial.  His report dated 21 February 2014 was released on 3 March 2014.  Following the release of the report, the father sought orders that the time with the child recommence, though in June 2014 that application was withdrawn and the father was given liberty to relist the matter when the outcome of the criminal trial was known.

12. Following his sentencing proceedings on 23 October 2015, the father filed a further Application in a Case on 3 November 2015 seeking time with the child.  He subsequently amended the orders he seeks on 5 February 2016. The application that comes before me today proposes that the father spend time with the child each Saturday for three hours, for a period of four weeks, to be supervised by a professional supervision agency, then each Thursday and Saturday, for six hours on each occasion, for four weeks in the presence of his wife, and then from Friday 3 pm to Sunday 3 pm without supervision.

The Law & Discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].  In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act1975 (Cth) (“the Act”) dealing with parenting, which sets out the particular ways in which the best interests of children are to be met, and also have regard to the principles underlying those objects. Section 60CA provides that:

   In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

   [1](2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.

2. In Deiter & Deiter[2], the Full Court said:

   When making an interim order, a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration.

   [2] [2011] FamCAFC 82.

3. In this case, it is submitted by the Independent Children’s Lawyer in particular that the likely duration, which in this case will be a matter of months, is a particularly relevant factor. 

4. Goode (supra) sets out a framework for the conduct of interim proceedings which includes identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.  Some regard also must be had to some matters in contest, especially where issues of risk are involved.

5. In determining what is in a child’s best interest, the Court is to consider the matters set out in subsections (2) and (3) of s 60CC. The primary considerations which are contained in subsection (2) are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the matters set out in subsection (2)(b).

7. In this matter, significant weight is attached by the father to the first of the primary considerations: the benefit to the child of having a meaningful relationship with both of the child’s parents. Submissions made by the father’s counsel began with the proposition that the Act recognises that there is a benefit to the child of having a meaningful relationship with both of the child’s parents. Although the father’s counsel subsequently conceded that the legislation itself does not invite the Court to assume that a meaningful relationship with a parent is always in a child’s best interest, the submissions proceeded on the basis that a Court would conclude that this was the case. As indicated in the course of interchange with counsel, the authorities make it clear that a Court should consider whether such a relationship is in a child’s best interests and then determine how orders can be framed to ensure that the child has a meaningful relationship with both parents.

8. The father also proceeds on the basis that the Court should attach significant weight to the expert opinion of Dr G and noted that it is unusual for such a report to be available on an interim application.  In particular, it is submitted that weight should be attached to Dr G’s opinion that children who can maintain a satisfactory relationship with both parents have less difficulties in the future and that should be applied in this case.  However, at the time the report was written, the significant issue of the circumstances surrounding the incident in May 2013 was not resolved.  Of particular significance is the opinion expressed by Dr G that, subject to the result in the father’s trial, there does not appear to be any other material which indicates that the child is at risk of abuse, neglect or family violence in either family.

9. The issue of family violence in this matter is a very significant one.  The parties have each conceded on this application that the Court should not rehear the matters in dispute surrounding the May 2013 incident when the father has been found guilty at a higher standard following a trial.  I indicated that I propose proceeding on the basis that the findings made by the trial judge, being the findings of the jury and the findings of fact consistent with those verdicts, would be adopted in this case.  In other words, I am satisfied that the father was reckless when he drove away when the mother was right beside the car and fell, ran over the mother’s leg, and being aware he had done so, he left the scene without providing assistance.  These are very grave matters which, in my view, fall within the definition of family violence.

10. Having regard to other matters, such as the psychological impact upon the mother of the child spending time with the father, in light of these findings at trial and the impact that that may have on the mother’s parenting capacity, there is a possibility that a court may find that there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s interests.[3]

    [3] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 at [122]

11. The result of the father’s trial, and the findings concerning his behaviour, are also relevant to the second of the primary considerations, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

12. Dr G expressed the view that subject to the result of the father’s trial, there does not appear to be any other material which indicates the child is at risk of being subjected to or exposed to any of these matters. While this is not a matter where allegations are made that the child herself is at risk of being neglected or physically abused, it remains to be seen whether a court may find that there is a need to protect the child from the psychological harm from being exposed to the family violence perpetrated by the father against the mother, having regard to the broad definition of exposure to family violence in s 4AB of the Act.

13. The parties did not refer to many of the additional considerations in relation to the best interests, as many are not relevant in these proceedings at this stage.  However, it is common ground that there was no relationship between the child and her father at this stage.  Although Dr G was of the opinion that the relationship he observed between the child and her father on the surveillance tapes were consistent with the child having developed a trusting relationship with the father, he also noted that the child seemed to be passive and was probably somewhat watchful initially but as the visits progressed, seemed to accept him and gave more indications of a degree of trust and of being sufficiently relaxed, so that she could be amused. 

14. However, given her age at that time, and the observation that a level of trust was only observed after a number of visits, and given the effluxion of time, it would seem likely that the child has no memory of, or a relationship with, the father at this stage.  In these circumstances, the additional consideration of the likely effect of any change in the child’s circumstances, which would be brought about by her introduction or reintroduction to her father and separation from her mother, is a very significant factor. 

15. Even when the child was much younger, she was described by the mother as being – and Dr G accepted it was the case – a little distressed and clingy with the mother as she was handed over to the father.  It is likely, in my view, given the age of the child currently, the absence of any relationship with her father, and the likelihood that she will pick on her mother’s anxiety with respect to the recommencement of the time, that the child would experience considerable distress, which may take some time to adjust to at being reintroduced to her father. 

16. I do not accept the submission that there is no reasonable indication that she would require any form for therapeutic support to rekindle the relationship.  I also do not agree with the description that the orders proposed by the father, which commence with him spending three hours once a week supervised by a professional agency, and then progressing to six hours on two occasions per week, and after eight hours to two nights overnight, could be described as a slow introduction. 

17. A further relevant consideration at this stage is the father’s current parenting capacity.  While Dr G did not have any concern about the father’s parenting capacity when assessed, and noted that he had then extensively – and apparently, appropriately – been involved in parenting his other children, in my view, questions may arise about his insight concerning the impact of a resumption of time with the child upon the mother and then upon the child, and his capacity to prioritise the child’s needs above his own in both the timing and the nature of this application. 

1. These will be matters that will require further assessment by Dr G, having regard to all of the circumstances, including the criminal trial and the findings of the jury and presiding judge.  Similar reassessment of the father’s attitude to the child and responsibilities of parenthood will also need to be made, in my view, in light of all of the relevant facts. 

2. Having regard to the particular considerations referred to, especially in these circumstances, where the child has had no time with her father since she was 11 months old, I cannot accept the central premise that there is a significant detriment to the child without the father in her life and the submission that there are not matters which indicate that the child may be at risk if she were to spend time with her father. 

3. I am also of the view that the specific proposal of the father, which does not provide for any therapeutic support, and which moves quickly from block periods of time to overnight time in circumstances where there is no existing relationship, is not child focused.  Further, in circumstances where an expedited hearing can be heard in a matter of months and the parties have agreed to obtaining an updated report, it would be premature and inappropriate to commence a regime of time as proposed by the father.  In my view, the orders proposed are not in the child’s best interests. 

4. Accordingly, the application is dismissed. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 February 2016.

Legal Associate:

Date:  2 March 2016