BANKS & SMYTHE
[2019] FamCA 805
•5 November 2019
FAMILY COURT OF AUSTRALIA
| BANKS & SMYTHE | [2019] FamCA 805 |
| FAMILY LAW – CHILDREN – With whom the child shall communicate and spend time with – Where the two oldest children are now young adults who reside with the father and spend time and communicate with the mother by direct arrangement – Where the subject child lives with the mother – Where the mother has sole parental responsibility for the subject child - Where the subject child has not seen the father for three years – Where the subject child does not have a meaningful relationship with the father – Where the father seeks to spend time with the subject child – Where the mother opposes the father’s application FAMILY LAW – CHILDREN – Best Interests – Family Violence - Where there are substantiated allegations of the father perpetrating family violence – Where the father attributes the family violence to his mental ill health – Where there is no reliable evidence that the father’s mental ill health has been addressed – Where there is a need to protect the subject child from psychological harm – Ordered the subject child live with the mother – Ordered the mother have sole parental responsibility – Ordered the subject child spend no time with the father – Ordered for restraints on the father to further protect the subject child FAMILY LAW – CHILDREN – Procedural – Where proceedings were commenced in the Federal Circuit Court of Australia – Where the proceedings were transferred to this Court – Where final orders provided the children live with the mother and spend limited supervised time with the father – Where the father failed to comply with the orders – Where a recovery order provided for the return of the two oldest children to the mother – Where this resulted in the mother being punched in the face by the second eldest child – Where the subject child remained living with the mother |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 64B, 68B, 102NA |
| Smythe & Banks [2016] FamCA 946 |
| APPLICANT: | Mr Banks |
| RESPONDENT: | Ms Smythe |
| INDEPENDENT CHILDREN’S LAWYER: | Denise Clark Solicitor & Advocate |
| FILE NUMBER: | NCC | 1359 | of | 2013 |
| DATE DELIVERED: | 5 November 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 14 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Smith |
| SOLICITOR FOR THE APPLICANT: | Koulouris & Associates Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Bithrey |
| SOLICITOR FOR THE RESPONDENT: | Ramsland Laidler Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Denise Clark Solicitor & Advocate |
Orders
All prior orders in respect of D born … 2006 (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The father is restrained pursuant to Section 68B of the Family Law Act 1975 (Cth) from:
(i)Contacting the child;
(ii) Causing any person on his behalf (including but not limited to B and C) to communicate with, contact or deliver any message to, the child;
(iii) Causing or allowing the child to attend or remain at his residence.
In the event the child contacts the father or attends at his residence the father shall forthwith notify the mother of that fact by text message to her mobile telephone.
Leave is granted to the mother to provide to any general medical practitioner, psychologist, or psychiatrist, engaged to provide professional services to the child, copies of:
(i) These orders and reasons for judgment;
(ii) The orders of 8 November 2016 and reasons for judgment;
(iii) Reports and assessment of Family Consultant dated 17 December 2013, 31 August 2016 and 2 August 2018.
Leave is granted to the mother to provide a copy of these orders to the principal of the school which the child attends.
The mother shall, within 28 days, arrange for the child to meet with the Independent Children’s Lawyer in order to have these orders explained by the Independent Children’s Lawyer to the child and for any questions arising from these orders to be answered.
The Independent Children’s Lawyer is, after compliance with Order 8, discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Banks & Smythe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1359 of 2013
| Mr Banks |
Applicant
And
| Ms Smythe |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are competing applications to vary current parenting orders, made in relation to all three of the parties’ children, on 8 November 2016 (“the 2016 orders”).
The parties lived together for about thirteen years, separating in 2011. The two older children are now young adults.
The 2016 orders provided for the mother to have residence and sole parental responsibility for the children and the father to have limited supervised time.
The father’s history of family violence perpetrated by him against the mother and also against his current wife, Ms H, was considered when determining the outcome for the parties’ children in November 2016.[1]
[1]Smythe & Banks [2016] FamCA 946, [43]-[63]
Within weeks of the 2016 orders the two older children had ceased living with the mother, a possibility identified by the trial judge, and the youngest child had remained living with the mother but had ceased spending time with the father.
The current proceedings solely concern the parties’ youngest child, their daughter D who at the date of trial was aged 12 years and nine months.
The Parties
The Applicant Father
The applicant father is currently aged 37 years. He is a labourer and lives in Suburb O, a suburb of City L, New South Wales.
The father’s household consists of himself and the two older children, young men aged 19 and 18 who are both employed.
The father asserts that he separated from his wife, Ms H, in December 2016 and did not reconcile with her.
The evidence is inconsistent with that contention.
On 9 January 2017 the father and his wife attended at Suburb M Court indicating they were C’s parents.
Ms H filled in a school enrolment form[2] for C in February 2017 including herself and the father as C’s parents.
[2] Exhibit 7
The father conceded he may have been out socially with Ms H, at a time alleged by the parties’ son, C, in a message to the mother on 27 September 2017.[3]
[3] Affidavit of the mother filed 23/08/2019, par 73
It is reasonable to infer that the father has not been candid about the state of his relationship with Ms H and she may be an ongoing, if not full time, member of the household.
The father denies any other current relationship.
The Respondent Mother
The respondent mother is 35 years of age. She is caring for and helping her father who has had a recurrence of cancer, and her grandmother who suffered a stroke early in 2018. The mother lives in City P, a city in Region N of NSW.
The mother identifies as an Indigenous Australian and belongs to the R people. Her household consists of herself, the subject child, the maternal grandfather and maternal great-grandmother.
The mother began a romantic relationship with Mr G in July 2014. The mother regretfully separated from Mr G in mid-2018. The relationship between them broke down under the financial and emotional pressure of these proceedings.
There is no evidence of a current relationship for the mother.
The mother relocated to City P with the subject child to live with and care for the maternal grandfather and maternal great-grandmother.
The Applications
The Father
By his Initiating Application filed 1 December 2017 the father sought a change of residence to himself for all three children (then aged 17, 16 and 11), that he have sole parental responsibility, that there be no formal orders for the two older children regarding time and communication and that the youngest child spend supervised time only with the mother.
By his Amended Application filed 5 July 2019, and continuing until trial, the revised orders sought by the father were that:
·All former parenting orders be discharged;
·The parties share parental responsibility;
·The child continue to live with the mother;
·The child spend all school holiday periods with the father;
·That each party keep the other advised of their contact details.
At the commencement of trial the position of the father changed again. A Minute of Order was handed up.[4]
[4] Exhibit 4
The father sought the discharge of all prior orders, that the mother have sole parental responsibility and residence and that the child spend time with the father “as per her wishes.”
In another case such a well-made concession may have led to a resolution of the dispute. That it did not, is understandable given the history of this matter.
The Mother
By her Response, filed 27 June 2018, to the Initiating Application of the father the mother effectively sought a confirmation of current orders for the two younger children (the oldest having turned 18 years). She also proposed one major change; that the children spend no time with the father.
By a Minute of Order contained in her Case Outline for Trial document[5] the position of the mother changed again. The middle child had turned 18 years so orders related only to the younger child.
[5] Exhibit 3, page 2
The proposal was that orders relating to time and communication between the father and the child be discharged and that a restraint on the father from contacting the child be put in place.
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) had a preliminary position that the father spend no time and have no contact with the child.
At the conclusion of the evidence the ICL put forward a Minute[6] seeking discharge of prior orders for time and communication and two restraints:
·That the father spend no time and have no communication with the child;
·That the father be restrained from causing or permitting any person (including without limitation B and C) to communicate with, contact or deliver any message to, the child on his behalf.
[6] Exhibit 12
The Trial
On 14 May 2019, the trial was set down for two days commencing 14 October 2019. At that time the father was self-represented.
On 28 August 2019, the parties were notified that due to family violence having been perpetrated on the mother, neither party could cross-examine the other personally due to the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”). In accordance with those requirements, the parties were informed that any cross-examination of either party must be conducted by a legal practitioner on their behalf.
On 18 September 2019, the father filed a Notice of Address for Service providing notice that he had obtained legal representation through the Legal Aid Family Violence and Cross-Examination Scheme.
Both parties were represented at trial by solicitors and had briefed counsel. The ICL was represented by counsel.
The trial was completed within one day due to the narrowing of the issues.
Judgment was thereafter reserved.
The issues
The issues to be determined are:
·Should the child spend time with the father if she wishes to do so;
If not,
·What restraints should be put in place if any.
Brief History of Relevant Events
The history of the laboured progress of this matter between the first application to the Federal Circuit Court (“FCC”) in mid-2013 until a three day trial in this Court in October 2016 is set out in the reasons for judgment of his Honour Justice Austin.[7]
[7]Smythe & Banks [2016] FamCA 946, [4]-[18]
November 2016 Orders
On 8 November 2016, orders were made for the children to live with the mother. The father thereafter asserted that the two older children refused to live with the mother.
On 21 November 2016, the father pleaded guilty to assaulting his wife, Ms H (in late 2015), and was put on a good behaviour bond for 12 months.
Supervised contact – … 2016
In 2016, three days before her tenth birthday, the child spent time with the father and her two older brothers at the E Contact Centre. This turned out to be the first and only visit.
The child clearly enjoyed spending time with the father and her brothers. She was physically affectionate and tearful when it was time to say goodbye.[8]
[8] Exhibit 8
Some of the conduct of the father during the visit was not consistent with showing support for the child living with the mother; a birthday card from him included the message, “we will be together again soon I promise you”; the birthday gift of a diary was “so you can write in it for us, if you wanted to, so that we don’t miss out on anything you do.”
Notably the mother reported to E Contact Centre that when she had delivered the child at the beginning of the visit the father had been parked in the street. He and both the parties’ sons “were putting their rude fingers up at her and waving them about.” She felt intimidated.
The father conceded in oral evidence he had been sitting in the car with the two boys when the mother arrived to deliver the child and when she left the centre alone, although he denied rude gestures being made.
The non-compliant attitude of the father to the two older children living with the mother as ordered, is consistent with the act of mocking defiance described. It is probable the event occurred as the mother reported.
Recovery Order
On 16 December 2016, a recovery order issued for the return of the two oldest children to the care of the mother. The return failed in circumstances where the mother was injured. C punched her in the face. The two older children then left the mother’s home and have remained in the care of the father, contrary to the 2016 orders.
The mother reported the assault to police.
On 9 January 2017, an Apprehended Violence Order (“AVO”) was made at Suburb M Court against C protecting the mother for a period of six months. The father and Ms H attended Court and indicated they were C’s parents.
A complaint was then raised by the parties’ older children that the mother had assaulted C. An interim AVO was in place for the protection of C for about three months until the matter was dismissed in April 2017.
Second visit at centre - March 2017
In March 2017, the mother was ready to provide the child for the second supervised visit. She had signed the Supervised Contact Agreement for 2017 for the five dates readily identified from the 2016 orders.
The father had not identified the dates from the 2016 orders and was apparently taken by surprise when reminded the visit was on Saturday 11 March 2017 [the second Saturday in March], “I was unaware of this scheduled visit. Hopefully I can still make it work.”[9] He was working on the relevant day.
[9] Exhibit 8
The mother was asked to change the day. In retrospect the mother was at the edge of her ability to support the visits. She had been unhappy about the father’s conduct both inside and outside the centre at the December visit. She was willing to comply but did not want negotiated change.
The March 2017 visit did not go ahead.
On 14 June 2017, after a change of management at the centre a courtesy letter was sent to the father about a possible visit although the relevant date for the visit had passed. There is no record of the mother being contacted. There were no further visits arranged.
On 14 June 2017, the AVO protecting the mother from C expired.
On 1 December 2017, the father initiated proceedings in the FCC.
In February 2018, the mother contacted the centre advising that the father had asserted in Court that the centre had been trying unsuccessfully to contact the mother. She confirmed that she had, at all times, been ready subject to confirmation that the visit would proceed.[10] If there was a response to her it does not appear in the records produced.
[10] Exhibit 11
On 2 August 2018, the parties and the two younger children were interviewed for a Children and Parents Issues Assessment.
Evidence
The documents relied on in respect of the application were as follows:
The Applicant Father – Mr Banks
(a)Amended Initiating Application filed 5/07/2019; superseded by Minute;[11]
[11] Exhibit 4
(b)Affidavit of Mr Banks filed 21/08/2019;
The Respondent Mother – Ms Smythe
(c)Amended Response filed 27/06/2018; superseded by Minute;[12]
(d)Affidavit of Ms Smythe filed 23/08/2019;
Reports
(e)Children and Parents Issues Assessment dated 2/08/2018;
Orders and Reasons
(f)Orders 8/11/2016 and reasons for judgment of his Honour Justice Austin.
[12] Exhibit 3
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(1) of the Act). The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question (s 61DA(2) and (4) of the Act).
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that parenting arrangements should be revisited and that the following matters are relevant to the best interests of this child.
Parental Responsibility and Residence
All parties agree that the subject child should continue to live with the mother and that the mother should continue to have sole parental responsibility for the child.
Primary Considerations for best interests
The benefit to the child of having a meaningful relationship with both of the child’s parents
In December 2016 the child had a meaningful relationship with each of her parents.
Five supervised visits per year have not taken place since. The child has not seen her father for almost three years.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
This case has seen a revisiting of parenting arrangement because previous orders have not been complied with and so it is unsatisfactory for such orders to remain in place.
Just as there was in 2016 there is a need to protect the child from psychological harm through exposure to family violence. She was five when her parents separated and was part of a violent household for the whole of the period leading up to separation.
There is no evidence as to whether the child saw her brother, C, punch the mother in the face in December 2016. Even if she was not present she is likely to have known that her two brothers treated her mother aggressively on that day before leaving to return to the father.
The child has received messages from her brother, as an agent for the father, which must have been upsetting and confusing.[13] The lengthy message, in September 2018, referred to the mother as “Ms Smythe” and as an abusive parent. There was this and other similar sentiments:
Ms Smythe treated us horrible, ripped our family apart and has now abandoned us, taking you with her.
[13] Exhibits 9 & 10
The statement itself is quite wrong. The mother strove to keep the children together, and in her care. She was legally successful but defeated in reality.
Fortunately the child has had the opportunity to spend time with her two older brothers with her mother from time to time since each of the boys has turned 18 years. However, the contrast between pleasant experiences with her mother and brothers and what is so rudely said about the mother by her brother in messages, must be painfully confusing.
Additional Relevant Considerations
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The father put forward as part of his case that he had been diagnosed with various disorders and conditions giving rise to mental ill health which had contributed to “the domestic violence incident [with Ms H].” Further, he contended that he had “adequately addressed these mental health issues through sessions of therapy with a psychologist”.
I reject this evidence and the submissions in support of it.
First, the father gave evidence in the trial in 2016 to that effect, and asserted that he had completed a course of counselling/therapy. A progress report to the general practitioner for the father was apparently produced.[14]
[14]Smythe & Banks [2016] FamCA 946, [59]
The Court in 2016, noting the absence of expert evidence about diagnosis, treatment and prognosis, expressly stated there was no rational basis to conclude the father’s condition would resolve.
Second, in this trial the father sought to rely on a report of a clinical and forensic psychologist. Testing and observation by the psychologist identified six separate conditions for consideration as diagnoses. The report was prepared specifically for the criminal matter, the assault on Ms H. The report was successfully objected to on that basis.
The father then attended 10 sessions with a psychologist, Ms K. The only evidence in respect of those attendances was a two line note from the psychologist that the father “has attended 10 sessions of psychological counselling”.[15]
[15] Exhibit 5
By deduction, completion took place between December 2016 and October 2019; a period of three years and two months.
I accept the submission on behalf of the mother that attendance by the father for that counselling was in response to a condition of the bond imposed in respect to the sentence for common assault.
However even if the father was motivated by an intention to explore behavioural change, in addition to compliance with the terms of the bond, there was no evidence of diagnosis, the goal of therapy, what was achieved and what, if anything, remained to be done.
Counsel properly conceded the deficiency in the evidence.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is almost 13 years, and is just finishing her first year of high school.
The mother says she has settled into school and is content to complete her secondary education in City P. There is no doubt the mother will encourage and support the child to complete the Higher School Certificate (“HSC”).
If the child is an Aboriginal child or a Torres Strait Islander child
The child is an Aboriginal child through her mother who is an R woman. City P, where the mother and child presently live, is part of the traditional land and country of the maternal family.
The child presently has the opportunity to learn the culture and traditions of the R people, alongside many maternal cousins and other relatives in that region.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The father has been irresponsible in his contemptuous attitude to Court orders. He did not support the parties’ two older children living with the mother in accordance with the 2016 orders. Quite the reverse; he encouraged them to live with himself.
When a recovery order was made by this Court in December 2016 the parties’ sons were returned to the mother’s house by Ms H, (whom he had recently assaulted), not by him.
The two boys entered the house in an aggressive way; C, aged 15, punched his mother in the face.
Such violent and disgraceful behaviour is most unlikely to have occurred if the two boys had been advised by their father to return calmly with an intention to re-join the household of the mother and to cooperate with her.
If, as the mother asserts, Ms H had remained around the corner waiting to drive the then children back to the home of the father, I infer that the two boys had been stirred up by the father to misbehave, then to come back to him and report events.
I am supported in that view by the evidence of the mother that both boys subsequently apologised to her and have not been violent towards her since.
The father also allowed both boys to leave school before completing the HSC, to the regret of the mother who had been an active supporter of their formal learning.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
Family violence is a most significant factor in this matter.
The parties began their relationship in their mid-teens. The first child was born just after the mother’s sixteenth birthday. The relationship was characterised by violence perpetrated by the father, threats to kill including a menacing written threat in 2005[16] and on one occasion in 2008 with a knife held to the throat of the mother.
[16] Affidavit of the mother filed 23/08/2019, Annexure A
The reasons for the 2016 orders include an analysis of the violent, domineering conduct of the father and his impact on the mother, the children and Ms H.[17]
[17]Smythe & Banks [2016] FamCA 946, [41]-[68]
The ultimate conclusion was that the risk of harm which the father represented to the children required orders which ensured the children spend no time with the father at, or in, his home.
There was no appeal from that decision of 8 November 2016. Instead the father chose to thwart the orders by keeping the two boys with him.
On 21 November 2016, the father pleaded guilty to one count of assault on Ms H resulting in a twelve month good behaviour bond.[18] On that basis the four other charges were withdrawn.[19]
[18] Affidavit of the father filed 21/08/2019, pars 11-12
[19] Exhibit 6
The good behaviour bond expired without further incident on 21 November 2017.
It is unlikely to be a coincidence that the father filed a fresh application for residence of the children 10 days after the bond expired.
The impact of that course of action was experienced by the mother as ongoing control of her by the father.
The mother’s despair and fear was revealed in her affidavit as follows:[20]
[29]I had such a feeling of relief when this Court made findings on 8 November 2016 about Mr Banks’s propensity for violence and particular domestic violence. I felt that I would finally be able to move on from this controlling, violent man because my history had been heard.
[30]I have had to justify my leaving a relationship to save my own life and my children’s lives on countless occasions. To be put through this again and again is absolutely horrific. I believe the reason for Mr Banks appealing the final decision after 7 years through Court and over a year of no contact with D is because this is the only way he has any type of control over me.
[31]I remain terrified that Mr Banks will carry out the threats that he would never allow me to leave him, and that if I did he would make my life hell, he would turn my children, my friends and family against me and last of all how he would kill me and what he would do to my body after I was dead.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
[20] Affidavit of the mother filed 23/08/2019, pars 29-31
The 2016 orders provided for the children to live with the mother and spend five supervised visits per year with the father. The intention was to deliver benefits to the children, namely to live in a safe supportive home with the mother and to maintain the relationship with the father, in a supervised setting free from risk of exposure to violence.
There was only one visit. This was due to a mix of circumstances; lack of attention to the orders by the father, some administrative confusion at the centre and later willingness of the mother to acquiesce to the wishes of the subject child not to attend any more visits. Hence the orders did not deliver the intended benefits for the children.
I note, in August 2018, the family consultant raised a concern as to “whether the Court is being used as a tool of further abuse to the mother and children.”[21]
[21] Children and Parents Issues Assessment dated 2/08/2018, par 49
The family consultant did so in the context of the stark change of position of the father; from residence and sole parental responsibility in December 2017 to week about shared care in August 2018 which was the new position of the father at the assessment interview.
The father stated “in hindsight it’s unrealistic”. Nothing had changed in the eight month period. It is credible that the father made the application he did in order to let the mother know he would not stop.
Whether or not that was his intention, the mother has felt oppressed by it and the subject child has become increasingly anxious.
The mother refers to the child having “bouts of anxious behaviour and nightmares, usually triggered by one of the boys trying to pass on messages from Mr Banks [the father], or when Mr Banks has directly contacted [the child] himself.”
The child should be relieved of the pressure which is being brought to bear on her.
Restraints on contact by the father, and messages from him through the adult children on his behalf, must stop.
Conclusion
There are now five years until the subject child turns 18 and can make her own decisions about her father. Until then the orders provide for the child to have no contact and communication with the father at all for the reasons set out above.
Orders are made accordingly.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 November 2019.
Associate:
Date: 5 November 2019
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