Bower & Marshall
[2022] FedCFamC2F 349
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bower & Marshall [2022] FedCFamC2F 349
File number(s): PAC 5345 of 2020 Judgment of: JUDGE STREET Date of judgment: 23 February 2022 Catchwords: FAMILY LAW - PARENTING – Interim application for supervised contact between the Applicant Father and the Child of the relationship – where the Respondent Mother is presently the primary carer for the Child – allegations of family violence – anxiety by Respondent Mother – detrimental impact on parenting – unacceptable risk at interim stage – no supervised access at this stage Legislation: Family Law Act 1975 (Cth) pt 7; ss 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 65, 65DAA, 69ZL, 79 Cases cited: Blinko & Blinko [2015] FamCAFC 146
Church & Overton [2008] FamCA 956
Clayton & Minshall (2021) FedCFamC1F 183
Goode & Goode [2006] FamCA 1346
Sedgely & Sedgley [1995] FamCA 154
Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 23 February 2022 Place: Sydney Counsel for the Applicant: Mr T Flaherty Solicitor for the Respondent: Ms A Thomas Solicitor for the Independent Children’s Lawyer: Ms K Rutkowska ORDERS
PAC 5345 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BOWER
Applicant
AND: MS MARSHALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
23 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The matter is fixed for a final hearing at 10:00am on 2, 3, 4 and 5 August 2022 via video and or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The application in a case filed 23 November 2021 by the Applicant Father is dismissed.
3.The Applicant Father file and serve a final trial affidavit and any further affidavit evidence upon which he wishes to rely on or before 29 April 2022.
4.The Respondent Mother file and serve a final trial affidavit and any further affidavit evidence upon which she wishes to rely on or before 27 May 2022.
5.The Applicant Father file and serve a case outline and list of objections on or before 10 June 2022.
6.The Respondent Mother file and serve a case outline and list of objections on or before 24 June 2022.
7.The ICL file and serve a case outline on or before 29 July 2022.
8.The Applicant father file and serve an affidavit as to the outcome of the criminal trial within 2 days’ of its conclusion.
9.Cross examination is limited to half an hour without further leave.
10.Oral submissions are limited to half an hour without further leave.
11.Liberty to apply on 3 days’ notice.
THE COURT NOTES THAT:
A.The Court will take into account any Calderbank offers in determining whether to make a costs order under the Act against either party, if appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bower & Marshall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an interim application by the Applicant Father for supervised access in relation to X, born in 2016 (“the Child”), being the child of his relationship with the Respondent Mother. The proceedings were commenced on 8 October 2020.
The issues in dispute are whether the Applicant Father should have supervised access pending a final hearing and where that access should be taken. The proposed orders by the Applicant Father also identified potential ongoing testing, if requested. There is a second issue in relation to the seeking of release of the funds from the sale of the matrimonial property.
The Respondent Mother opposes both orders. The Independent Children’s Lawyer (“ICL”) has put on submissions, seeking to support supervised access by the Applicant Father at an appropriate facility.
Chronology
The chronology identified in the Respondent Mother’s chronology is as follows:
Date Event Source 1986 Father is born. M 2 1991 Mother is born. M 1 2012 Mother’s child, B is born. M 4 2014 Parties commence their relationship. Mother and B move with the Father into a 3-bedroom home in Suburb C.
Father tells the mother “Don’t tell Centrelink we are together, if you get less Centrelink I will lose the house.”M 5, M 7
M 11
2014
2014- Sept 2019Father re-mortgages the former matrimonial home.
Father works full time.M 7
M 13, 142015 Mother works part time as a tradesperson. M 10 2016 The subject child, X is born (currently aged 5). M 4 2017 The father signs a Centrelink rental statement stating that he is the mother’s landlord. M 15 April 2017 The mother alleges that the father put X in the car and as the father started to drive off with X, said to the mother “I’ll drive into a wall or pole and kill us both”. M 41 November 2018 The mother alleges that the father grabbed her by the throat, lifted her off the ground and squeezed her throat. M 42 18 November
2018Mother texts her cousin, Mr D “Mr Bower tried to chock [sic] me out yesterday”. Tender Bundle
41Mid 2019 The mother alleges that the father pushes the child over when the child tries to stand up for the mother. M 43 January 2020 The mother alleges that the father throws a shoe at B. The mother alleges that the father grabs the mother by the throat and pushes her into
X, knocking X over and causing her to cry.M 44 February 2020 The police attend the parties’ home and tell the mother “A neighbour heard the argument and called the Police.”
Reports are made to the Department of Communities and Justice. Caller says “Ms Marshall [sic] was heard yelling at Mr Bower accusing him of having hit the eldest child in the head…Mr Bower was heard stating that she deserved it and that he would hit anyone he wanted to.”
Tender pp 8-10
March 2020 The mother leaves the home with B and X. The parties separate. 30 March 2020 The mother alleges that in the presence of X, the father grabs her by the throat, pulls her around in a circular motion and threw her headfirst into a wall. The mother alleges that the father gets a large spanner and says, “if you don’t leave I’ll smash your car”.
The mother and X attend E Hospital due to the mother’s pain caused by the assault.M 46
Tender Bundle 34
31 March 2020 The mother reports the incident on 30 March 2020 to the police. A provisional Apprehended Domestic Violence Order (‘ADVO’) is made against the father for the Mother’s protection. Tender pp 2
May 2020 Father starts paying the mother $100 per week in child support. M 25 28 July 2020 The provisional ADVO is varied to include an order that the father can only contact the mother through a lawyer, to attend mediation, in accordance with court orders or as agreed in writing. M 78 29 July 2020 The father texts the mother “How is X? When can I see my daughter?”. M 75 30 July 2020 The mother speaks to an officer at the police station regarding the father’s text message to her. M 76 11 August 2020 A Final ADVO is made against the father for the mother’s protection. M 47 13 October 2020 Father is charged with Breach of the ADVO and receives a Section 10 dismissal. M 77 Tender pp 5 2020 Father attempts to take his own life. CDC paragraph
24
30 November
2020
The matter listed for First Return Date before Judge Newbrun. The Mother is not represented. Orders are made by consent:
· That an ICL be appointed
· That the child live with the mother
· That the father spend time with X every second weekend from 6:00pm Friday to 6:00pm Sunday,
· That for the purposes of the father’s time with the child one of the grandparents are to be present.
M 5 2020 Father attempts to take his own life Tender page 16 13 January 2021 The father is charged with common assault, assault occasioning actual bodily harm, and intentionally choke etc without consent. M 53 23 January 2021 The police are called by the father’s girlfriend about the Father’s text message to her stating that he was going to kill himself. Police attend the father’s home. The police are told that the father tried to hang himself outside.
Father is admitted to F Hospital.Tender page 3 25 January 2021 Mother files her Court documents. Court file 30 January 2021 Father stops paying the mother $100 per week in child support. M 25 6 February -10
February 2021
The Paternal Grandfather calls the Police and tells the Police that the Father is suicidal. The father is voluntarily admitted to F Hospital. Tender page 3 15 February 2021 The mother receives a text message from a friend whose child attends school with B, stating B told her son “something about him [Mr Bower] being her fake dad and that X [sic] got chased around the house by him with a knife” M 49 Annexure 19 February 2021 Matter listed for mention before Judge Newbrun at the Federal Circuit Court in Parramatta. Court file. 26 February 2021 The mother ceases to facilitate the child’s time with the father. 3 March 2021 Mother files an urgent Application in a Case and supporting Affidavit to suspend father’s time with the child.
Mother discovers that the father sold the Suburb C property without telling her.Court file
M 26
23 March 2021 Mother files an urgent Application in a Case and supporting affidavit seeking funds from proceeds of sale of the Suburb C Property be set aside.
Child Dispute Memorandum released recommending that the father spend no time with the child until the mother’s allegations can be tested in Court.
Mother contacts Centrelink and informs them that the parties had misled Centrelink during the relationship.Court File
M 28
24 March 2021 Matter listed in the duty list before Judge Newbrun. Court file 26 March 2021 Child Dispute Conference Memorandum is released. Recommendations: Court file 26 March 2021 Matter listed for Interim Hearing before Senior Judicial Registrar Tran. Orders made for $120,000 of the proceeds of sale to be placed in a controlled monies account. Court file 16 April 2021 Matter listed for Interim Hearing before Senior Judicial Registrar Tran. Orders made for:
1. Suspending the father’s time with the child.
2. Father to complete CDT testing and random urinalysis tests.
3. Father to complete Men’s Behaviour Change Course with a registered provider.
4. Father to attend on GP for a referral to a psychiatrist and attend on that psychiatrist for mental health, alcohol abuse and anger management.
5. A section 68B injunction to prevent the father coming within 100 metres of the mother and child’s home.
Court file July 2021 On the day that the mother enrols child in preschool the mother attends G Hospital believing she is having a heart attack. Mother has had a panic attack. M 58, 59 5 October 2021 Family Report by Ms H is released. The following recommendations are made:
1. X live with Ms Marshall.
2. Ms Marshall have sole parental responsibility for X.
3. X spend no time with Mr Bower.
Court file October 2021 Mother and children move out of paternal great-grandparent’s home.
Mother receives start safely subsidy due to experiences of family violence.November 2021 X’s friend tells the mother “I am so sorry that your husband smashed your head into a wall” and “X told me”. M 49 18 November
2021
Mother completes a Circle of Security Course M 62 23 November
2021
Father files Application in a Case and affidavit seeking property and parenting orders. Court file 24 November
2021
Mother sees father’s new partner, Ms J, at Suburb K Store. After walking past Ms J, the mother then sees Ms J re-enter the store on the phone and looking around. M 63 8 December 2021 Mother experiences further panic attacks at thought of seeing father at the Conciliation Conference. Attends GP and receives script for Valium. M 64, 65 14 December
2021
Parties attend a Conciliation Conference. No agreement is reached. M 32 23 February 2022 Matter listed before Judge Street. The Applicant Father’s Submissions
The Applicant Father identified having undertaken drug tests and Carbohydrate Deficient Transferrin (“CDT”) testing, as a result of the orders made by the Court on 16 April 2021. It is to his credit that he has apparently achieved positive results in that regard. He has also undertaken certain courses.
The Applicant Father identified that he has not spoken to his Child since February 2021 and he is seeking the commencement of supervised visits. Although his application referred to visits at his parent’s home, it was indicated to the Court that he would be willing to undertake supervised access at an appropriate facility.
The Applicant Father annexed a report from his psychologist, dated 10 July 2021. There is a report from L Psychology, identifying that the Applicant Father reported no symptoms of depression, anxiety or difficulties with anger, which is, obviously, a positive sign in relation to his mental health.
The Applicant Father identified how he hoped to ensure that the supervision would not place his daughter at risk, and that he wanted to start seeing his daughter as soon as possible. The Applicant Father identified concern in relation to the daughter not seeing him and expressed his distress in relation to his daughter not being able to see him and his family.
The Applicant Father identified that he is continuing to see the psychologist to assist in coping with not seeing his daughter, and that he has not seen photographs of her since February 2021.
The Applicant Father also put on evidence in relation to allegedly wishing to obtain $40,000.00 from the sale of the proceeds of his home, in respect of criminal proceedings likely to be heard in July.
There was contested evidence also put on, from the Applicant’s Father, asserting that the proceeds of sale were as a result of funds coming from the Applicant’s father. At this stage, the Court is not satisfied that it is appropriate or necessary in the interests of the administration of justice to make an interim order an respect of the legal fees anticipated by the Applicant Father in respect of his criminal proceedings. Those funds are currently the subject of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”), which will be dealt with at a final hearing.
The Respondent Mother’s Submissions
In relation to the Respondent Mother’s position, she identified a history of alleged family violence. It is not appropriate for the Court at this stage and in rehearing, applying Goode & Goode [2006] FamCA 1346 (“Goode”), to make findings of fact in relation to the issues that are contested. However, it is apparent that there is some objective evidence that purports to corroborate allegations of domestic violence. It is sufficient to refer to a hospital report annexed to the material provided for the Respondent Mother.
In relation to the issues in dispute there is a psychologist’s report in respect of the Respondent Mother, dated 21 March 2021, identifying her as having Post-Traumatic Stress Disorder (“PTSD”) and anxiety.
The ‘no contact’ order pressed by the Respondent Mother is one in which the submission was advanced that contact between the Child and the Applicant Father would impact on the Respondent Mother’s capacity and ability as the primary carer, and so impact on the Child’s best interests. In that regard, reliance was placed, in essence, on the propositions identified in Sedgely & Sedgley [1995] FamCA 154, and more recently identified in Church & S Overton [2008] FamCA 956 and Blinko & Blinko [2015] FamCAFC 146.
The Respondent Mother’s ongoing mental health, in circumstances where she has the Child living with her, is of considerable importance. Given the history alleged of domestic violence and the psychologist’s evidence, the Court is satisfied that there is a real risk that commencing contact, be it at a supervised centre or otherwise, or, as the Applicant Father maintains, at his parent’s home, is likely to have a potential deleterious effect on the mental state of the Respondent Mother to such a degree that it would not be in the best interests of the Child, given that the Respondent Mother is, at this stage, the primary carer.
Mr Flaherty of Counsel, on behalf of the Applicant Father, did identify that his client has also been suffering mental health issues because of the deprivation of the contact with the Child, to which the Court has already referred. Those concerns are ones which the Court has taken into account, and the Court will be fixing the matter for an earlier hearing than it might otherwise. The Court proposes to fix the matter for a final hearing on 4 and 5 August 2022.
The Applicant Father has, however, obtained the benefit of the ongoing psychologist’s support that he has identified in his evidence. The Court is of the view that the concerns identified in the Respondent Mother’s evidence outweigh the arguments advanced by Mr Flaherty in respect of his own client’s mental health. The unacceptable risk of impact on the Child in the care of the Respondent Mother as to the impact on her parenting ability from permitting contact in the circumstances where there has been identified serious allegations of domestic violence, which are due to be tried in July outweigh the benefits from commencing supervised access.
This is a case in which the Court accepts that permitting contact in the interim may have a serious deleterious effect upon the ability of the Respondent Mother to carry out her parenting activities such that it is not appropriate to permit contact between the Applicant Father and the Child prior to the final hearing. The Court has taken into account the detailed evidence from the Respondent Mother.
In relation to the alleged family violence, which is contested, the Court must adopt a conservative approach. There are allegations of threats made by the Applicant Father, on the Respondent Mother’s evidence, to her life. There is an allegation of a threat in respect of life made in 2017. There is an alleged incident that occurred in November 2018 where the Respondent Mother alleges that she could not breathe.
Of particular concern is an incident in mid-2019 in the presence of the Child, where there is an allegation as to the Child intervening, saying something about “upsetting Mummy,” and “making Mummy sad,” in the context of an alleged physical encounter. There is a further incident alleged on 19 January 2020, which, according to the Respondent Mother, resulted in the Child crying and screaming. The Respondent Mother identified an explanation for the delay in reporting.
There is a further incident identified on 30 March 2020 in which, again, alleged a threat in relation to life and in respect of a threat to physical damage to property. The mother attended E Hospital with the daughter after that incident.
There was a final Apprehended Domestic Violence Order (“ADVO”) made on 11 August 2020. In paragraph 48 of the Respondent Mother’s affidavit, she identified alleged instances of violence towards the Child and her other child. The Respondent Mother also identified alleged evidence of reports of adverse behaviour from others.
The Respondent Mother identified that she initially told the Applicant Father that he could spend time with the Child at his parent’s home only due to her concerns for her safety, and that she undertook this because she thought that the Applicant Father would take the Child away if he was not allowed to see her.
The Respondent Mother referred to consent orders made on 30 November 2020 in relation to supervised time, and again referred to being “very scared” at that time that her Child would be removed. The Respondent Mother was allegedly still under the experience of the family violence which had impacted on her ability to negotiate.
The Respondent Mother referred to charges being laid against the Applicant Father on 13 January 2021, in respect of the assault in January 2020. The Respondent Mother referred to making an urgent application on 3 March 2021 and that, by consent, on 16 April 2021, orders were made suspending the Applicant Father’s time with the Child, and for the Applicant Father not to come within 100 metres of where the Child and the Respondent Mother were living.
The Respondent Mother has enrolled the Child in a preschool and has not disclosed the location due to her concerns for their safety. The Respondent Mother’s concerns for her safety in that regard are consistent with the potential adverse impact that the Respondent Mother alleges may occur if contact recommences at this stage, impacting on her ability as the primary carer to look after the Child.
The Respondent Mother identified that she is seeing a psychologist for support. She also identified that she does not want to disclose the address where they are living due to the same safety concerns which, again, are consistent with the Respondent Mother’s assertions, which the Court has referred to in relation to her ability to function in her parenting role if contact recommences prior to a final hearing.
The Respondent Mother identified having a panic attack on 8 December 2021. The Respondent Mother identified her financial circumstances and her outgoings. She also identified that she was attending upon a psychologist once per month and continuing to suffer anxiety and PTSD because of her alleged experienced of family violence. The Respondent Mother referred to being fearful that the Applicant Father will discover where they live and will harm her and, relevantly, the Child.
The Respondent Mother identified that she was seeking final orders that the Child spend no time with the Applicant Father, and that she have sole parental responsibility. A submission that was not without force which was advanced on behalf of the Respondent Mother was that it would be inappropriate at this stage, other than giving expedition, to make an order that might be one that commences contact and that at a final hearing a no-contact order is made. The Court accepts the submission that that would not be in the best interests of the Child where the Court can offer a degree of expedition in terms of the final hearing.
The Respondent Mother identified, in her affidavit, her concern in relation to supervised and unsupervised contact potentially giving rise to psychological harm to the Child and the impact that it would have on her and that it would make her feel very anxious and frightened. The Respondent Mother, in her affidavit, also makes reference to the dispute in respect of the proceeds from the dispute in relation to the matrimonial home to which the Court has earlier referred.
The ICL’s Submissions
The ICL put on submissions, identifying the successful test that had been undertaken by the Applicant Father. The ICL also put on submissions that there was no unacceptable risk in relation to supervised access. The Court must adopt a cautious approach. The ICL’s position is not the same as that identified in the Family Report, dated 16 September 2021. Having referred in detail to the Respondent Mother’s evidence, it is not necessary to summarise the full content of the Family Report. However, that report, contrary to what was advanced by the ICL, was to the effect that the child spend no time with the Applicant Father.
The ICL’s submission suggested that there was no evidence of psychological harm to the child. That is contrary to the Respondent Mother’s affidavit evidence, to which the Court has already referred. However, of greater weight is the evidence that the Court accepts that the mother’s ability to parent would be potentially adversely impacted at this stage if contact were to commence with the Applicant Father, even at a supervised centre or at the grandparents’ home. This does not mean that, at a final hearing, the Applicant Father may not have a level of success in relation to advancing his contact and significant and meaningful time with his daughter. However, that will depend upon the findings that the Court makes at that stage, which the Court will be in a better position to do and cannot, at this stage, undertake given the cautious position that the Court must follow.
Findings and Reasons
Insofar as the approach in relation to pt 7 of the Act, the Court is required to follow the statutory pathway identified in Goode. There is no issue in the present case other than the limited issue in respect of supervised access. In that regard, it is the best interests of the Child that is the paramount consideration of the Court. This means in respect of the parenting orders and s 65DAA of the Act, the presumption of joint parenting and equal time are rebutted. The Court is entitled to give short form reasons under s 69ZL of the Act.
The Court must take into account the obligations under s 60CC(2)(b) of the Act to prevent the Child suffering harm. In the context of this case, the Court is satisfied that it would not be in the best interests of the Child, at this stage, for the Applicant Father to commence contact time, albeit supervised. This is because there is an unacceptable risk from supervised contact in respect of the Respondent Mother’s ongoing ability to parent if that contact commenced at this stage. Where the child is in the mother’s full time care this diminished ability from anxiety is sufficiently identified by the evidence to be a real possibility and is at this stage an unacceptable risk if supervised access were to commence at this time. The supervised access would potentially degrade the parenting capacity of the Respondent Mother to the concomitant detriment of the Child. The anxiety is supported by expert evidence and cannot be said to be irrational or baseless and in this case is sufficient to justify elimination of the Applicant Father from the Child’s life at this stage, Clayton & Minshall (2021) FedCFamC1F 183 at [88-90]. The possibility of a different outcome at a final hearing also weighs against the commencement of such supervised access being in the child’s best interests and outweighs the interests of a meaningful relationship under s 60CC(2)(b) of the Act. Indeed s 60CC(2A) of the Act requires the Court to give greater weight to the consideration under s60CC(2)(b) of the Act. The unacceptable risk finding at this stage means that it is not in the best interests of the child to commence supervised access.
The Court has taken into account the considerations under s 60CC(3) of the Act. The child is too young to express views. The relationship with the mother as the caring parent may be adversely impacted by commencement of supervised access and the Court has taken into account the relationship impact as identified in the Applicant Father’s submissions, the Court accepts that the father wants to spend supervised time with the child. The allegations of domestic violence reflect allegations of a failure of the Applicant Father, if proved to fulfil parental obligations. Supervised access would be a change in circumstances. There is no relevant practical difficulty in commencing supervised access. The capacity of the Respondent Mother to provide for the child’s emotional and intellectual needs may be adversely affected by supervised access. The young age of the child and characteristics are not of significant impact in respect of supervised access. The child is not of Aboriginal or Torres Strait heritage. The child is too young to express views. The allegations of family violence whilst not proved are serious and weigh against supervised access at this stage where finding have not been made. The Court has taken into account the AVO referred to above. The interim orders are not likely to lead to institution of further proceedings. The anxiety and mental health of the Respondent Mother weigh against supervised access at this time.
The Court has already identified that it is not satisfied that it is appropriate to make an interim order in relation to the proceeds of the matrimonial home.
Accordingly, the Court is satisfied under s 65 of the Act that it is proper to make Orders 1 to 11.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 23 February 2022 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 7 April 2022
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