Chesterton and Chandler

[2007] FamCA 201

FAMILY COURT OF AUSTRALIA

CHESTERTON & CHANDLER [2007] FamCA 201

FAMILY LAW - CHILDREN - With whom a child lives - Family violence - Interim

APPLICANT: MS CHESTERTON

RESPONDENT: MR CHARLTON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2202 of 2004

DATE DELIVERED: 15 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 14 & 15 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr I.N. Brewer

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Ms C.S. Kahagalle

SOLICITOR FOR THE RESPONDENT: De Marco & Co

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms A. Glaister

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Marshalls & Dent

Orders

1. Until further order the children, a daughter born in August 2000 and a son born in September 2002 live with the mother.

2. The mother forthwith do all things reasonable to ensure the children are delivered to her care.

Second order

1. The order made earlier this day that until further order the children the daughter born in August 2000 and the son born in September 2002 live with the mother remain in full force and effect.

2. Until further order the father spend time and communicate with the said children as may be agreed between the mother and the father.

3. Ms B, Family Consultant be and is hereby requested to make a notification to the Department of Human Services in the State of Victoria by way of Notice of Risk on Form 4 as a result of paragraphs 1 and 2 of these orders.

4. The further hearing of all applications be adjourned part-heard before Justice Mushin in July or August 2007 at a specific time and date to be notified to the parties by the Court following consultation with the respective solicitors.

IT IS REQUESTED THAT

1. Pursuant to section 91B of the Family Law Act 1975 the Secretary of the Department of Human Services Victoria intervene in these proceedings.

IT IS FURTHER ORDERED THAT

1. For the purposes of paragraph 4 hereof the Independent Children’s Lawyer:

   (a)       provide to the said Department copies of the following documents:

   (i)a sealed copy of this order;

   (ii)a certified copy of the reasons for judgment delivered this day;

   (iii)a copy of the Report of Ms B, Family Consultant dated 1 September 2006;

   (iv)the transcript of the evidence of Ms B this day;

   (v)copies of any affidavit and Report of Dr K in these proceedings; and

   (vi)copies of any affidavit filed in these proceedings which the Independent Children’s Lawyer at her sole discretion regards as being relevant to the said Department’s consideratio of this matter;

   (b)liaise with the said Department and assist it in investigating this matter in all reasonable ways.

2. The responsible officer of the Department of Human Services be and is hereby requested to provide a report of all investigations and enquiries arising out of the notification contained in paragraph 3 hereof to the Independent Children’s Lawyer within 3 months from this date.

3. Pursuant to the provisions of Section 65L of the said Act these orders be supervised on a reportable basis by Ms B who is also required to provide to the mother and the father such assistance as is reasonably requested by her or him in relation to compliance with, and the carrying out of, these orders.

4. Ms B provide a Report to the Court as to the supervision no later than the adjourned date pursuant to paragraph 4 hereof to be advised to her as soon as practicable, such report thereupon to the forthwith released to the parties.

5. The Independent Children’s Lawyer be and is hereby authorised to provide copies of the following documents to any school or like institution attended by either of the children the documents referred to in sub paragraph 6 (a) hereof namely (i), (ii), (iii).

6. The mother and father their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the others family or household of the children or either of them in the presence of the children or either of them or within the hearing of the children or either of them. 

7. Within 14 days hereof the mother obtain a post office box and provide the details of same to the father for the purpose further compliance with these orders.

8. The mother and the father provide the children with appropriate sleeping arrangements including beds of their own during any periods when the other or either of them are in their respective care.

9. The mother follow all reasonable advice and recommendations of her medical practitioner and remain medication compliant.

10. The mother keep the Independent Children’s Lawyer informed of her current residential address, contact telephone number if any and school or other like institution attended by either of the children and forthwith inform the Independent Children’s Lawyer of any change thereto.

11. All questions of costs be reserved.

12. General liberty be reserved to all parties to apply on short notice to Justice Mushin.

13. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2202 of 2004

MS CHESTERTON

Applicant

And

MR CHANDLER

Respondent

REASONS FOR JUDGMENT

1. The parties are in dispute over their children, aged six and four.  The parties commenced cohabitation in July 1999 and separated in March 2003.  Essentially, the father has been the primary parent of the children since the separation and particularly in recent times.

2. The parties commenced these proceedings before me with competing applications for the children to live with each of them.  The background is of importance.  There have been numerous allegations made, each by the other, of various dysfunctional behaviours.  The father has alleged that the mother was unfaithful to him during their relationship and that she is unreliable and dysfunctional as a parent.  The mother alleges that the father is violent and in particular, has made threats to kill her.

3. The father was resisting contact until late last year but in December, consented to orders before the Senior Registrar, providing to the mother regular weekend or alternate weekend contact and regular time spent with the children, not just alternate weekends but at other times.

4. Shortly after the commencement of this hearing, the mother's Counsel informed me that his client was not proceeding with her application that the children live with her.  She now sought orders similar to the present orders on the basis that the children live with the father and spend regular time and communicated with her approximately in accordance with the present orders which were entered into in December.

5. On that basis, the parties, together with the Independent Children's Lawyer, indicated through their respective Counsel that they felt that some time outside of Court might enable them to resolve the matter.  I noted to them certain concerns which I had on both sides and noted that I would be wanting those concerns addressed in any orders to which the parties consented.  As well as issues of the mother's unreliability in collection of the children in order that they would spend time with her, the issue of the father's anger was of extreme importance.

6. There are two aspects to that.  The first of them is that there is some significant evidence that the father uses corporal punishment against the children.  Dr K, a consultant and forensic psychiatrist who has reported to the Court in this matter on the psychiatric state of each of the parties, noted that the father told him that he "has a wooden spoon" but did not need to use it.  However, despite that, the older of the children informed the counsellor that the father, as well as the younger child, is "hit" with the wooden spoon. 

7. The second and even more concerning aspect of the father's anger and resultant violence was threats made against the mother to the counsellor as set out in the family report dated 1 September 2006 which is evidenced before me.  Paragraph 16 of that report states: 

   [The father] stated several threats that he intended to kill [the mother].  The consultant was very concerned about [the father’s] threats and took time out in the interview to explore his statements with him.  He reiterated this intention several times throughout midmorning saying, "I'm going to kill her," and, "It's just a matter of time."  When the consultant expressed concern that [the older child] was aware of this intention, he shrugged his shoulders and said, "They know it will happen."  It is feasible that these threats may have represented a plea for assistance by a frustrated and disillusioned man wishing to prevent any decrease in his input into his children's lives, but the seriousness of the threats, the number of times they were made and the calm manner in which they were said were unnerving and suggested otherwise.

8. Other aspects of the consultant's report refer to what I regard as being unacceptable parenting by the father, on the assumption that they are correct, and are matters for concern. In particular I refer to paragraphs 18, 19 and 20 with regard to the older child; the younger child, because of his age, did not have that kind of input to the consultant's consideration.

9. The minutes of proposed orders with which I was presented late yesterday contained what I regard as being appropriate protections given the shortcomings of the parties as appears to be demonstrated in the documents before me.  I emphasise that I have not heard evidence other than from the family consultant, and accordingly, the various allegations and counter‑allegations have not been tested in the usual way.  I emphasise that I can only make findings to the extent that matters are admitted or are common ground or in the case of the father, are statements against interest. 

10. However, that last statement does not take into account the possibility of a claim by the father that the family consultant has incorrectly reported.  Other material, including brief evidence from the father to which I will shortly refer, suggests to me that it is unlikely, at least on a preliminary basis, that the family consultant's allegations with regard to the father's threats towards the mother are incorrect.

11. Some of the provisions of the minutes of proposed consent orders relate to attendances on medical practitioners and particularly, such an attendance by the father with a request for a referral to a psychiatrist for counselling in relation to his stated hostility to the mother and the authority to the mother to obtain reports with regard to any such consultation.  The parties sought to provide for a communication book and other details were also included in those minutes.

12. In light of the seriousness of the allegations, particularly against the father, and my concern as to the possible consequences of his attitude towards the children and the mother, I took, at my request, brief evidence late yesterday afternoon from both the mother and the father, that evidence being on oath.  The mother's evidence was uneventful.  However, the father's evidence caused great concern.  I informed him that if what the family consultant had reported was ultimately found to be correct, he may well have committed a criminal offence punishable by up to 15 years in gaol.  I observed him to be smiling and asked him if he found something amusing about that.  He questioned me about the 15 years and I reiterated it and said that it was in respect of a threat to kill.  The father then leant forward in an aggressive and confrontational manner towards me and said:

    Maybe she shouldn't be a bitch and plus, I didn't start it, she did.  She threatened me before I threatened her, just that I'm the one that kept on going.

13. I then told the father that he should go back to sit in the body of the Court behind his Counsel.  As it was late in the day and I did not have any lengthy opportunity to consider the consequences of that statement, I said that I was not prepared to make the orders in accordance with the minutes yesterday and adjourned the matter part-heard before me to 10 o'clock this morning. 

14. This morning I informed Counsel that as a result of my consideration of the matter overnight, I would be prepared to make the orders of the minutes perhaps with some small alterations and additions but only on an interim basis.  I proposed that the matter be left part-heard before me for a period of six months and that the matter should then be brought back on, probably with an updated report by the family consultant.  In the meantime, there should be a supervision order pursuant to section 65L and a notification should be made to the Department of Human Services of the State of Victoria with regard to any risk factors.

15. I am aware of the fact that the Department has already been involved in this matter and I have been informed by Counsel that they have closed their file on the basis that they do not have any protective concern for the children while they are living with the father. 

16. Following that discussion with Counsel, I stood down because I still wanted to hear from the family consultant as to her views of my proposal.  When I resumed at approximately 11.15 am, the family consultant was ready to give evidence.  I observed that the father was not in Court and on bringing that to the attention of his Counsel, I was informed by her that he had left the Court and that she had instructions that the father would give the children to the mother today and that she should pick them up as stated in detail by Counsel.

17. I then heard evidence from the family consultant.  That evidence will be transcribed and made available.  Suffice it to say that the concerns which I had yesterday and which have continued today and were particularly heightened by the father leaving Court and surrendering the children to the mother, particularly in circumstances in which the counsellor found a very good relationship between the father and the children and the documents suggesting that the mother may not be a realistic option for long‑term primary care of the children, were confirmed by the family consultant.

18. I then sought assurances from Counsel that the children were safe, given what might have been the mood of the father.  I made an immediate order for interim residence in favour of the mother and authorised her, by order, to pick the children up forthwith.  I have been assured that that has been done and I note that neither the mother nor the father is present in Court at this time.

19. I have given this matter very great consideration during the day and now express my grave concern for the care of these children.  It seems to me that neither parent can be said to be an entirely satisfactory carer for the children and in those circumstances, the question of the involvement of the Department of Human Services again becomes relevant.  It seems to me that with the new circumstance of the children being placed in the primary care of the mother and the apparent intention of the father to leave their lives to the mother, either largely or even completely, creates a situation in which there may well be significant protective concerns for them in accordance with the definition of that term in State legislation.

20. I have accordingly decided that I will make an order pursuant to section 91B of the act, inviting the Secretary of the Department of Human Services to intervene in these proceedings. I will also request the family consultant to make a formal Notification of Risk on Form 4 to the Department and I will direct the Independent Children's Lawyer to provide various documents, including the reports, any relevant affidavit material, the orders which I will make at the end of these reasons for judgment and these reasons for judgment to the Department.

21. I will adjourn the proceedings part-heard before myself for mention before me in late July or August of this year, at which time I will consider the further disposition of the proceedings, including what further evidence might be necessary.  I will make the reportable supervision order under section 65L and I will direct the Independent Children's Lawyer to coordinate the matter with the Department of Human Services.

22. I will reserve liberty to all parties to bring the matter on before me on short notice in the event that there is a significant change of circumstance.  Otherwise, I will leave the interim residence of the children with the mother and order that any order that the children spend time with the father or communicate with him be as agreed between the parties but also reserve liberty to the father to apply for formal orders as to spending time with them and to vary these orders, particularly in his absence, despite the fact that his solicitor and counsel have remained involved in the proceedings and are present at the court at this time.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  16/3/2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CHESTERTON & CHANDLER