Calkin and Calkin
[2007] FMCAfam 1013
•13 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALKIN & CALKIN | [2007] FMCAfam 1013 |
| FAMILY LAW – Parenting – family violence – pornography – risk of psychological harm. |
| Family Law Act 1975, Part VII, ss.4, 60B (1)(b), 60CC (2)(b), 60CC (3)(a) & (j), 61DA, 65DAA |
| Blanch v Blanch (1999) FLC 92-837 Goode v Goode (2007) 36 Fam LR 422 JG & BG (1994) FLC 92-515 Patsalou v Patsalou (1995) FLC 92-580 Vasser v Taylor-Black (2007) 37 Fam LR 256 |
| Applicant: | MR CALKIN |
| Respondent: | MS CALKIN |
| File Number: | CAC 1898 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 7 & 13 November 2007 |
| Date of Last Submission: | 13 November 2007 |
| Delivered at: | Canberra |
| Delivered on: | 13 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Payget |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Mr Gersbach |
| Solicitors for the Respondent: | Farrar Gesini and Dunn |
ORDERS
The following Orders are to be reviewed in the light of the Family Report to be prepared by Ms Greer, subsequent to a reportable family conference, which is to take place on 12 December 2007 at 9.30am.
The parties, together with the child [X], born in 1998, attend a reportable family conference at 9.30am on 12 December 2007. If the matter does not resolve I request that a family report be prepared.
Subject to further Order, [X]’s parents shall have equal shared parental responsibility for her.
Until further Order, [X] shall live with her Mother.
Subject to further Order, or written agreement between the parties, each of the parties shall use their best endeavours, and take all reasonable steps, to ensure that [X] spends time with her Father as follows:
(i)Each alternate weekend from 5pm on Saturday until 5pm Sunday.
(ii)Each Wednesday evening following a weekend when the child will be spending time with her Father, from after school until 7.30pm.
(iii)By telephone, each Monday, Wednesday and Saturday, provided that no telephone call is made after 7.30pm, and as otherwise requested by [X]. Each party shall provide the other with a landline and mobile telephone number to facilitate communication.
The parties shall do all things necessary to ensure that each of them receive, at their own expense, copies of all school reports, newsletters, photographs and other materials regarding [X] and her school. Any authorisations required shall be provided by her parents.
Both parents have liberty to attend any extra-curricular, sporting or school event involving [X].
[X]’s parents are to keep each other informed, through their legal representatives, of any serious medical issue that involves [X].
Each parent shall advise the other if [X] is taken outside of a 100 km radius of Canberra, and shall provide telephone and residential contact details where [X] shall be living.
Both of [X]’s parents shall be restrained from discussing or disclosing any matter or material that relates to these proceedings. They shall not monitor any telephone or other conversation between [X] and the other parent. Neither parent shall denigrate or otherwise speak in any derogatory manner about the other parent, and use their best endeavours to ensure that no one else does so either.
The matter be adjourned to 20 December 2007 at 9:30am.
AND IT IS NOTED:
The parties shall attend a conciliation conference with a Registrar on 11 December 2007 at 11:00am.
IT IS NOTED that publication of this judgment under the pseudonym Calkin & Calkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1898 of 2007
| MR CALKIN |
Applicant
And
| MS CALKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are reasons for Orders made on 13th November 2007.
The applicant in these proceedings is Mr Calkin. His daughter, [X], is 9 years old. Mr Calkin, who is 42 years of age, married the respondent, Ms Calkin, in August 1987. They separated on 27th March this year.
Mr Calkin seeks orders in relation to property, and in relation to the care and welfare of [X]. A conciliation conference has been scheduled for 11th December 2007. These reasons deal only with orders made in relation to [X].
The proposals of the parties are significantly divergent. The one common element is that [X] should live with her Mother and spend time with her Father. The principal difference between the parties relates to if, when and how that time with her Father is spent. In correspondence between the parties’ solicitors, which is annexed to his affidavit of 21st September 2007, and in submissions on his behalf in Court, Mr Calkin acknowledges that [X] has a close relationship with her Mother.
Factual Context
Mr Calkin is concerned about, and provides evidence of, what he says is a concerted “anti-Dad” campaign against him by Ms Calkin. He is particularly concerned that she has involved [X] in this operation. He recounts his concern in this regard over thirteen paragraphs in his affidavit (pars.15.1-15.13). He cites, for example, a number of occasions when his attempts to take [X] skiing have been thwarted, he says, by Ms Calkin.[1]
[1] Unless otherwise specified, it should be taken that paragraph references are to Mr Calkin’s affidavit of 21st September, 2007.
Mr Calkin avers to attempts to mediate a settlement concerning arrangements for [X]. To date, they have been unsuccessful.
Mr Calkin also admits (par.25) to three incidents of family violence, one of which (in 2005) was witnessed by [X].
For her part, Ms Calkin provides significant detail, by way of an affidavit sworn on 1st November 2007, of the troubled relationship between her and Mr Calkin, and what she says is a no less difficult relationship between [X] and her Father. Ms Calkin does not seek to deny that [X] spend time with her Father, but that until a Family Report is provided, a rather more limited range of time with him be ordered because of the range of issues she raises about Mr Calkin. It is to those issues that I now turn.
The issues of concern to Ms Calkin might conveniently be divided between those that relate to what she says is a pattern or history whereby Mr Calkin denigrated and belittled her, both in private and in front of others, as well as making threats and otherwise intimidating her.[2] The second aspect or focus of her concern relates to [X]’s anxiety about her Father and his conduct towards her. Both of these areas of angst have led Ms Calkin not to reveal to Mr Calkin where she and [X] are living.
[2] See, for example, par.17 of her 1st November affidavit, where Mr Calkin is alleged to have said words to the effect of: “You won’t live to regret it if you leave me.”
As to the first area that relates to Ms Calkin’s apprehension, if not dread, of certain aspects of Mr Calkin’s conduct, she refers to him forcing her to take part in making of home pornographic videos (pars.24 & 25). She refers to other instances of violence towards her, especially after Mr Calkin has allegedly been drinking to excess after various cricket games.
Ms Calkin says that Mr Calkin has also verbally abused [X] (par.23), and contends that [X] has consistently said in recent times that she does not want to spend time with her Father.
Significantly, Ms Calkin annexes to her affidavit (annexure “B”) a substantial number of pages from [X]’s journal. Those entries, which cover the period from early May until October 2007, include entries such as `Dad was hassling [sic] me,’ `Dad’s creepy,’ `I don’t want to go with dad.’ Other entries are transcribed in par.35 of Ms Calkin’s affidavit.
There are two other entries and events that are particularly concerning. One is that [X] wet her pants while at the cinema with her Father because, she says – in a note in her journal – she feared Mr Calkin would get angry if she was absent for a few minutes when she went to the toilet. Ms Calkin describes this in par.46 of her affidavit. [X]’s diary entry is dated 6th June 2007.
The second incident of concern, again corroborated by [X]’s journal – in her own hand writing and with a drawing – relates to Mr Calkin allegedly seeking to record conversations between [X] and her Mother. [X] states in her journal (annexure “A” to Ms Calkin’s affidavit; and see par 32) that in a conversation with Ms Calkin in the course of which she declared she missed her Mother so much that she “cried in the toilets”, her Father was listening at the door and later placed a tape recorder in her bedroom.
For my part, I find the submissions of Ms Payget that entries in [X]’s journal do not show any clear position held by this child, and or that her views are only one of a range of additional considerations, respectfully, less than compelling. Consistent, contemporaneous entries in a child’s private journal must, on any view, be significant evidence for the Court’s consideration. Section 60CC (3)(a) is the first “additional consideration” to which the Court must have regard. [X] has expressed herself tellingly, and consistently, over a significant period of time. The Court should pay appropriate heed to those views. They can be tested, so to speak, or certainly considered in a more fulsome manner by the Court appointed family consultant in due course.
Ms Calkin deposes to a number of other instances (e.g. Mr Calkin firing toy rockets at [X] despite her protests to stop: par.50) which, she says, cause [X] to not want to go, or to spend time, with her Father.
Mr Calkin seeks to ameliorate some or all of the above by annexing to a later affidavit (sworn 7th November 2007) two drawings provided to him by [X] earlier this year, the first in January, and the second a short time after separation. I need only make the observation that [X]’s journal entries post-date those drawings (in which she professes affection for her Father) by a not insignificant time.
Jurisprudential Considerations
In addition to relevant sections found in Part VII of the Family Law Act1975, two decisions of the Full Court of the Family Court were pressed in argument. The decisions are Goode v Goode[3] and Vasser v Taylor-Black.[4] The cases are not, and should not be regarded as, mutually inconsistent or in any way irreconcilable.
[3] (2007) 36 Fam LR 422.
[4] (2007) 37 Fam LR 256.
Goode v Goode was promoted for the obvious reason of its detailed consideration of the “legislative pathway” that must be followed, which includes s.60CC and, in this case, notably s.61DA concerning the presumption of equal shared parental responsibility, and s.65DAA in relation to the child spending “substantial and significant” time with the parents.[5]
[5] See (2007) 36 Fam LR 422 at 445 [82].
Ms Payget, for Mr Calkin, argued forcefully that the main issues in the case centred around [X]’s views (i.e. reliability and weight),
Mr Calkin’s attitude towards [X] as alleged by Ms Calkin, and the relevance of the family violence [admitted] by Mr Calkin. As to the latter, Ms Payget contended that Mr Calkin has not yet had an opportunity to respond. She confirmed that he will do so. In saying that he could have provided a brief affidavit at least formally putting in issue the contentions made by Ms Calkin, I should not be heard as making a significant criticism of him at this stage of the proceedings. What is more significant is that Ms Payget indicated in her submission that the issue of violence, or at least conflict, was something of a “dynamic” in the family in which both parties have been involved.
As well, Ms Payget contended that Mr Calkin was not seeking to spend a large amount of time with [X], but what would accord with s.65DAA regarding significant and substantial time, particularly block periods of time in the school holidays, which, she says, could be configured in a number of ways. Mr Calkin also seeks alternate weekend contact.
Mr Gersbach, counsel for Ms Calkin, submitted that the more relevant case for this stage of the proceedings, and not in any way to discount the importance of Goode v Goode, was the Full Court decision in Vasser v Taylor-Black.[6] In that case, the Court held that in failing to grant an adjournment, Altobelli FM “deprived himself of the opportunity to have the best available evidence to determine this young child’s best interests.”[7] In Vasser, the learned Federal Magistrate failed to allow time, via the adjournment, for certain investigations to proceed: hence the finding by the Full Court that he had deprived himself of having the best evidence before him.
[6] (2007) 37 Fam LR 256 (Finn, Boland & Ryan JJ).
[7] 37 Fam LR at 265 [49].
By parity of reasoning, Mr Gersbach submits that because of the seriousness of the matters raised in these proceedings, I should wait for a family report before making any orders concerning any further time spent between [X] and her Father. If I did not wait, I would be deprived of the best available evidence in this matter. I agree with this submission and, of course, with the views expressed by the Full Court in Vasser.
I was urged to seek the provision of a family report at the earliest possible time. With significant difficulty, this has been achieved, so that a family report should be available to the Court when the matter next comes before it on 20th December 2007, the reportable family conference due to take place on 12th December.
I am concerned about the risk of psychological harm to [X] should she access, however inadvertently, her Father’s pornographic material, particularly any of which that involves her parents. I note that by letter from his solicitors, dated 28th June, “without admission”, Mr Calkin confirms that he `will not allow the child access to pornographic material.’
I am also concerned about the psychological risk to both Ms Calkin and to [X] if the “dynamic of violence” referred to is either correct and or perpetuated in any time spent between [X] and her Father. These are matters that are properly the subject of a number of sections in Part VII of the Act, and in particular, ss.60B(1)(b), 60CC(2)(b), and 60CC(3)(j), to which the Court is required to pay due attention.[8]
[8] It is sufficient for present purposes simply to note the broad definition of “family violence” in s.4 of the Act.
As well, there is the judicial guidance provided by a number of important cases in relation to “family violence.” I need only, at this juncture, note them. I have in mind here, for example, the signal judgment of Chisholm J in JG & BG[9], as well as the important comments of Baker J, regarding the significance of “denigrating remarks”, in Patsalou v Patsalou[10], which were quoted approvingly by Lindenmayer J in Blanch v Blanch.[11]
[9] (1994) FLC ¶92-515.
[10] (1995) FLC ¶92-580.
[11] (1999) FLC ¶92-837. See, too, the remarks of Mullane J, also in Blanch at pp.85,747 and 85,748 regarding the impact of a pattern of abusive behaviour.
The significance of both the admission, and risk, of family violence, of whatever kind and to whatever degree, is sufficient to displace the presumption of substantial and significant provided by s.65DAA. In any event, especially because of the material contained in [X]’s diary, even if little weight is placed on it at this stage, is also sufficient, in my view, to indicate that substantial and significant time spent between [X] and Mr Calkin – at this time – is not in her best interests.
For the above reasons, I make the orders set out above.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 3 December 2007
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