Coumans and Mertens (No.2)
[2019] FCCA 141
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COUMANS & MERTENS (No.2) | [2019] FCCA 141 |
| Catchwords: FAMILY LAW – Parenting – time with father. |
| Legislation: Family Law Act 1975 (Cth), ss.64B, 65D, 61DA, 65DA, 60CA, 65AA, 60CC, 60B, 60CC(2A) |
| Cases cited: Rice & Asplund [1978] FamCA 84,(1979) FLC 90-725,6 Fam LR 570 Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MR COUMANS |
| Respondent: | MS MERTENS |
| File Number: | SYC 8001 of 2018 |
| Judgment of: | Judge B Smith |
| Hearing date: | 16 January 2019 |
| Date of Last Submission: | 16 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livingston |
| Solicitors for the Applicant: | Grover Law |
| McKenzie Friend for the Respondent: | Mr A |
ORDERS
Forthwith upon service of a sealed copy of this order upon them the Reid Family Lawyers deliver any passport in their possession or control relating to the child, [X] born …2013, to the Registrar of the Sydney Registry of the Federal Circuit Court of Australia, Lionel Bowen Building 97-99 Goulburn Street Sydney NSW 2000, to be held by the said Registrar pending further order of the court.
The child, [X] born …2013, live with the mother, Ms Mertens born …1983.
The child, spend time with the father, Mr Coumans born …1983, as follows:
(a)From the conclusion of school Friday until the commencement of school Monday each alternate weekend commencing at the end of the first full week of Term 1, 2019. If there is a public holiday on a Friday or a Monday adjacent to that weekend the public holiday shall be deemed to form part of the weekend and time to commence and / or end at the conclusion of school Thursday or commencement of school Tuesday.
(b)For the purpose of changeover the father or his nominee shall collect the child from school at the commencement of each period and the father or his nominee shall return the child to the school at the end of each period.
The father is restrained by injunction from:
(a)Driving with the child;
(b)Consuming alcohol for twelve (12) hours prior to and during any period while the said child is in his care.
Commencing Thursday 17 January 2019
(a)Until Term 1 2019 of school commences the child is to communicate with the father via telephone or facetime or similar at least once per week at a time to be agreed between the parties or failing agreement on a Thursday evening.
(b)After the first weekend time with occurs in place of order 5(a) above the child is to communicate with the father via telephone or facetime or similar at least once per week at a time to be agreed between the parties or failing agreement the Thursday evening before a weekend when there is not time with the father and the following Tuesday evening.
Both parties be restrained from discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child or permitting any other person to do so.
Within 2 months, each party to attend an appropriate post-separation parenting program and provide evidence of completion to the other party.
The Child Dispute Conference listed on 8 February 2019 is vacated.
Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 26 April 2019 at 10am AND the parties are advised that if a person fails to comply with this order or any instruction the Consultant gives to the person the Consultant must report the failure to the Court.
The matter be listed on 21 May 2019 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
The costs of these proceedings are reserved.
NOTES
The parties have agreed to liaise around a celebration for the child’s sixth birthday on …2019.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Coumans & Mertens (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8001 of 2018
| MR COUMANS |
Applicant
And
| MS MERTENS |
Respondent
REASONS FOR JUDGMENT
This matter has come before me today as part of an urgent list for the second time, having previously been before me on 20 December 2018. I propose to provide a decision in oral form, noting the short-form reasons for decisions provisions of s.69 ZL of the Act, the urgency of the case, and also noting the number of urgent matters still to be heard this week and the rest of the list so that judicial resources mean that providing a written judgment, whilst preferable, is something that may not take place for some months. It seems to me, that that delay is not appropriate in this case. So I will do the best I can with an oral decision.
I note that the matter was previously before me on 20 December 2018. At that time it was a first return and the matter was dealt with on an urgent basis. The mother wished to travel overseas with the child, together with her partner Mr A, who has been her McKenzie friend today.
That matter was heard and determined by oral decision. At that time she had legal representation, which she does not currently have. She wished to go to Country A. I note that the matter before me today had proceeded, largely, on the same material, the same pleadings and the same primary affidavits. I have been given one exhibit from the applicant relating to his mental health and a voluminous tender of documents by the mother, which are referenced in her written submissions.
Given the time of day and also issues of judicial resourcing and to avoid duplication, this judgment, if necessary, should be considered read together with the transcript of argument on the prior occasion, the oral judgment given on the prior occasion and the transcript of today’s argument.
I note that on the prior occasion I made orders which were in effect to not allow the child [X], who was born …2013, is now five and a half years of age, to be taken from the Commonwealth of Australia. She was placed on a watch list. I ordered that the child’s passports be held by Mr Wilson of Reid Family Lawyers, then the respondent’s solicitor, and ordered that a Child Dispute Conference take place on 8 February 2019.
In respect of the passports, I note that since Mr Wilson is no longer on the record, and there appears to be some dispute between the mother and him, the appropriate course is for an order to be made that Mr Wilson provide the passports of the child to the Registrar of the Federal Circuit Court of Australia to hold in the usual way. I confirm the prior order regarding the Child Dispute Conference, if it is necessary, to do so.
The matter that has come before me today is almost a first return, given that we dealt with a limited question on the last occasion. As I say, I do not propose to go through all of the factual matters which have already been dealt with by me in the prior oral judgment.
The two matters before me today on an urgent interim basis are an application by the respondent to travel, this time to Country B, and also an application by the applicant father for time with the child in person, that not having occurred for some period of time and only limited telephone contact having taken place.
I deal first with the application to travel to Country B. I note that the application by the respondent to have the child travel to Country B is opposed by the applicant father. In the father’s written submissions, effectively, it is said, that it is unsupported by evidence, that the objection is made for the same reasons that supported this Court’s Orders of 20 December 2018 not allowing the child to be removed from the Commonwealth of Australia, and in effect on the Rice & Asplund basis. I agree that this application is in effect a minor variation of the application which I have already dealt with and refused. The mother is from Country A originally. The new partner, Mr A, is from Country B. I have made my orders about what is appropriate at the moment. Effectively, I am being asked to re-determine and revisit the orders I made on 20 December 2018 on the basis as set out in the mother’s written case outline, aide memoire 2. In effect, as I understand it, the mother does not feel that she was well represented on the last occasion, and wishes to lead additional evidence and re-litigate the issue herself.
There is a very important principle in this Court that litigation is conducted once. Obviously, where the best interests of the child are concerned, there is no finality of litigation, but to come back before the court less than one month after the Court has ruled that it is not appropriate for the child to leave Australia and to effectively say “We would like a second bite of the cherry with different evidence and a different approach and going to Country B rather than Country A” does not address the legal issue that people cannot just keep coming to court, saying “We did not win last time. We would have another go”. If the court was to allow that to occur, we would spend all of our time rehearing applications by people who are unhappy, and once one travels to Country B, one can go to Country A easily enough, or anywhere else one wishes to go.
As a matter of law, I find that I am not able to consider the application to vary my orders as it would be in breach of the principles set down in Rice & Asplund and following cases.
The mother is, of course, entitled to take that issue to the appropriate appellate court, as I indicated in the course of oral argument. I am no more infallible than any other person or judge, and so we have a system in place that allows people who believe that an error has been made to have that error corrected by another court. But it is not appropriate for me to revisit my prior decision, and on that basis I will not vary the orders I have made in respect of the passport or the watch list or the restraint upon people taking the child the subject of these proceedings from the Commonwealth of Australia.
The parties agree that the child should continue to live primary with the mother. It seems to me at the moment, to be entirely appropriate, and I think it is an appropriate concession for the father to make.
The real issue before the court is what time, if any, the father should spend with the child and whether he poses a risk to the child, and if so, what risk or risks he poses, whether they are acceptable or unacceptable risks, whether, if there are risks, those risks can be ameliorated by the making of appropriate orders including whether supervision is required. That is the nub of the matter.
I note that when considering this matter it is an interim application for parenting orders as defined in part VII division 5, and I note section 64B. I refer to the court’s powers under 65D. The issue of parental responsibility has been raised. The mother has sought sole parental responsibility. I note that there is a rebuttable presumption of equal-shared parental responsibility as set out in section 61DA and, of course, subject to 65DA.
The presumption is not to apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child; or another child who was a member of the parent’s family; or the other person’s family; or of family violence. And that, of course, is consistent with the primary consideration of protecting the child from harm.
The paramount consideration, noting sections 60CA and 65AA which refer to the best interests of the children, are encapsulated in the considerations in section 60CC, noting that they are aligned with the objects and principles of the Act as set out in section 60B. The first of the so-called twin pillars, as noted in Mazorski & Albright, is to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence, and 60CC(2A) tells us that is the first and primary consideration. The second pillar is looks at the benefit of the child having meaningful relationships with both parents.
I note that, obviously, I am required to follow the statutory path as set out in Goode & Goode when considering this matter, but I will just refer quickly to the fact that, as the court said in Marvel & Marvel, interim hearings and the orders made on interim basis are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing, and I note that this requires a conservative approach to be adopted, to any factual findings, and any such findings will be couched with great circumspection.
I also note that, as the court said in Banks & Banks in 2015, at [48] to [50], it will be the issues that are joined that will dictate which section 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which in the best interests of the child require determination prior to a full determination at a trial, and it is also important to stress here the requirement to consider each factor does not mean each must be discussed, especially when the evidence leads inexorably to a particular conclusion.
Now, coming to the factual issues, what we are really dealing with here is, primarily, about two events which have led the parties into an increasingly unfortunate spiral of distrust.
The parties did appear to have a mature and balanced approach to each other and their child for a considerable people of time. There appear to be perhaps a number of reasons why this has fallen away, but on a factual basis there are two primary issues which were raised by the mother.
The first, which is addressed by the father in paragraph 77 of his affidavit of 13 December 2018 relates to a motor-vehicle accident on 23 September 2018 in which he and the child, concerningly, were involved in a single-motor-vehicle accident. The event as the father said it is, I quote from paragraph 77.
I was involved in an accident with [X] in the back seat. I was neither intoxicated and nor did I fall asleep whilst driving. Police and ambulance attended the scene of the accident. [X] was not injured. Ambulance personal examined [X] at the scene, releasing her to the care of my mother. Police and ambulance examined and questioned me then I left with my father. On 24 September 2018, I took [X] to the medical centre following the accident to confirm she was okay. The doctor examined [X], and there were no injuries.
He annexes a copy of a medical certificate dated 29 October 2018.
The mother says that she was not informed of this event and only found out about it by accident. She says that the medical certificate and medical material, including that tendered by her, does not make it clear that the father when he had the child checked out, provided sufficient information to the treating practitioner so that they could understand that they were looking not only for a cold and perhaps bruising from hitting a fence but that they should be aware of and cognisant of the fact that the child had been in a motor vehicle accident of great significance and that therefore, the risk that there were unobserved, serious internal injuries. There was reference to the cerebral fluid, and I note there are certainly cases of people being involved in accidents having traumatic head injuries who appear well enough for 36 hours until the bleed puts pressure on the brain and with the absence of a Richmond bolt they can die.
This is the reason underlying the mother’s concern that the father was seeking to hide this, and her belief that he thereby put the child’s life at risk. She also refers to a variety of issues raised about the fact that there is no supporting evidence from police or ambulance and that, of course, accidents involving alcohol are one of the primary causes of single motor vehicle accidents.
I note that the absence of evidence is not evidence in this context. I do not think any Jones & Dunkel inference around police material or the absence of material at the moment can be said to arise at this stage. I also note, as I raised in argument with the mother, that suicide is also a leading cause of single vehicle accidents, and it is just not possible to infer and she asks me to do from the fact, that many single motor vehicle accidents involve alcohol, that this particular motor vehicle accident did. Nevertheless, I accept that the mother’s concerns are subjectively bona fide.
I think it’s not fair to consider her concerns about the first incident without considering the second incident which did involve alcohol. Now, of course, the reasoning process that says since one incident involved alcohol, there is a prior incident that probably also did involve alcohol is not particularly strong, but one might see how that could happen here.
That second incident is referred to in paragraph 78 of the father’s affidavit. In effect, on 2 October 2018, he says:
I attended Ms Mertens’ unit inquiring about [X] as I had not seen or heard from Mr Mertens or [X] since 24 September 2018
I did not demand to have [X] in my care.
Contrary to that last statement, I note that text messages do suggest that when the father went to the mother’s unit, it was his intention to take [X]. He continued.
I was intoxicated at the time and I did drive. Prior to arriving, I had been at a friend’s place having a meal and a drink. My friend offered me his motor vehicle to drive home. It was on the way home that I decided to do a check on [X] to see if she was okay. I was concerned that I had not seen [X] for such a long time.
The police were called to the premises because of a dispute between the parties and then observed the applicant father to get back in his car and drive away whereupon he says:
I was charged with high-range PCA, plead guilty on 26 November 2018 for driving that night, received a community correction order for a period of 12 months.
I note that a copy of that is annexure “I” to his affidavit.
So one suspects that the second event involving alcohol, and the fact that the mother is of the view that the first event was hidden from her, has led her to draw the inference that the father has a drinking problem and that the first event probably involved alcohol.
Now, I am not in a position to make any ruling nor indeed as a matter of law am I, I think, entitled or allowed to make any ruling as to what the circumstances of what that first event were.
However, obviously a high speed motor vehicle accident is a significant event. The applicant father suffered injuries. It appears that fortunately, perhaps because she was in the back seat, the child did not suffer significant injuries, but I do not know what happened. I am certainly not in a position to find that there was alcohol involved. The father says there was no alcohol involved. At some future stage, presumably if the police and ambulance did attend, someone, is going to subpoena that material in order to establish that [X] was seen by the ambulance or at least to see what can be established from that.
Now, the incident on 2 October 2018 is obviously one that is conceded. It is of great concern that the father was driving whilst intoxicated. I am of the view that the text message which seems to be about that time does suggest he did have the intention of driving with the child. That is a matter of great concern. That is, of course, the kind of very poor thinking that impairment by intoxication often leads to. So on this basis, I think that the mother has, as I say, genuine concerns. I should note that in paragraph 78, the applicant father also says:
I deny I am an alcoholic and deny that I have exposed [X] to any neglect. [X] is my daughter and I love her.
Now, when the Court looks at the question of risk, one also looks at the other issues and it does not seem to me to have been suggested that this is a violent father, that he has been physically abusive of [X], that he does not love [X], that he is in, as one sees in so many cases, neglectful of her when she is in his care. What we do have is some evidence that he had made a very, very poor decision around drink-driving and in the context of a conflict, potentially, with the mother and he has paid to some extent the price for that in that, as I understand the conviction before the magistrate at …, it is a first offence which confirms what I have been told. He entered into a community correction order for 12 months pursuant to section 8 of the Crimes (Sentencing Procedure) Act 1999. That runs until 26 November 2019.
He had to report to community corrections. I understand that he has had his licence suspended, as is effectively required even for a first high range offence, until sometime in April 2019. That licence suspension deals with what I consider to be one of the two risk issues which is the potential for the father driving with [X] at the moment, given the issues around drink-driving in the second event certainly and the mother’s concerns around the driving and possibly drink driving in the first event.
So certainly I think it would be appropriate that there be an order, for the moment at least, that if the father spends time with [X], he not drive with [X] in the car.
The mother says the father has a drinking problem. Certainly the events of 2 October 2018 support that idea but that is only one event. I note that the fact that the father has only had one driving offence with alcohol. That does not prove that he does not have a problem with alcohol, but in one’s experience people who have major long-term problems with alcohol tend to have more recorded convictions for PCA than that but I cannot make any findings about that at the moment.
Nevertheless it does seem to be appropriate, given what has occurred, certainly at the moment, that if the father spends time with [X], he is also not to consume alcohol for 12 hours prior to spending time with her and he is not to consume alcohol while he is with her. I think it needs to be made clear that when one looks at risk, and there was reference by the mother in her submissions to character, it is not merely a question of if there is any risk then the parent should not see the child, it is about protecting the child and looking at what the risk is, what the magnitude of the risk is and extent to which that risk can be ameliorated.
Now, the mother inferentially accepts that these risks can be ameliorated, but her proposal as refined from her written submissions in oral submission today, is that in addition to living with her and having scheduled telephone calls every two to three days, that there be supervised visits every second weekend and she accepts supervision by members of his family, having originally been concerned that they were involved in a conspiracy to deny her knowledge of the first event.
She accepts that supervision would be too expensive if a professional service is required and significantly I note that she indicated that she saw this as a step towards [X] eventually living with the father, with minimal changeovers, for between three and five consecutive days. Now, I take that as the mother accepting that he is not a, if I can use the word, predator, or not a naturally violent man who is likely to be a risk to the child, and that is how I understand the case to be run but it is this question of alcohol and judgment particularly around motor vehicles that raises the risk.
So when one considers the specific risk, and one then looks at exhibit 1 which is the report of the registered psychologist, it is a short report, it does not give a great deal of material. Nevertheless it does say:
It is my professional opinion that Mr Coumans is of no physical and/or psychological threat to his daughter or his ex-partner Ms Mertens at present.
That psychologist also refers to the fact that the father is receiving psycho-education techniques and cognitive behavioural approach to help him manage his anxiety, stress and insomnia and also focusing on communication skills and mindfulness and noting that he was gaining insight and was making progress.
I do not know this particular psychologist, but that provides me with satisfaction of two things: one, that the applicant is taking this question seriously, that he is seeking treatment for his anxiety and stress which may be a trigger for drinking behaviour, I will not call it an addiction because I do not know what the facts are, but he is certainly taking that issue seriously. With that in mind, it seems to me that whilst I am satisfied that there are potential risks of him if he drives with [X] and he consumes alcohol with [X], I am also satisfied that those risks can be properly dealt with by making orders that he not drive with [X], noting that at the moment he cannot drive and, as I understand it, he is likely to have an interlock on his motor vehicle after he gets his licence back, and also making orders that he not consume alcohol for 12 hours before he spends time with [X].
I think on balance, doing the best I can and giving due weight to the mother’s concerns, particularly given the events of 2 October 2018, (the second event) that these should be appropriate protections of the child’s physical and psychological wellbeing and that in those circumstances, given that there does appear to have been a long-term meaningful relationship between the child and the father, and as I understand it the mother’s submissions, she accepts in the long run there will be benefit to a meaningful relationship with both parents. I do not think that it is necessary that there be supervision at this stage.
I note the father has provided a relatively extensive proposal running for a considerable period of time, and I think that given the significant absence of trust and given that I am going to have the benefit of an experienced family consultant employed by the Court to give me an opinion sometime after 8 February 2019, that I am looking at only the very short-term for the moment and then consider where we should go and what we should do after we have had the benefit of that material.
I note that there are private ADVO proceedings being brought by the mother against the father. That is obviously a matter for her. They are, I am told, listed on 19 February 2019 and the protected people listed are both the mother and the child. Obviously it will be a matter for the learned magistrate to hear and determine that matter and they may, of course, have the benefit of oral testimony which I do not have the benefit of.
The magistrate may also have the benefit of the police evidence and their views about what occurred which I do not have. I note that that is on foot, but the facts founding the application have been put before me and I have indicated my thoughts about that in terms of a risk to the child. It may be that the level of conflict between the mother and the father is such that she has that view and that the magistrate may make that finding that it is appropriate but I am not satisfied, other than to the issues that I have identified, that there is a risk to the child.
As I said, I am mindful of the very high degree of conflict and mistrust at present, although pleased that the mother has indicated she sees a longer term where [X] spends substantial unsupervised time with the father.
What I propose to do is to make orders to hold this matter and to start contact for the next couple of months and then to bring the matter back sometime in about two or three months after we have started contact to see what is happening and when I have the benefit of a Child Dispute Conference.
On that basis I will push the Child Dispute Conference back, closer to when I am going to have the matter next before me because that might help me see what has occurred in the meantime.
For the reasons I have given, I am not going to make an order about parental responsibility. We will leave it as it is.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 25 January 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Costs
-
Remedies
-
Procedural Fairness
-
Jurisdiction
0
6
2