Damani and Damani

[2018] FCCA 3351

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMANI & DAMANI [2018] FCCA 3351

Catchwords:
FAMILY LAW – Interim parenting – whether or not the mother’s partner is an unacceptable risk – injunction restraining mother’s partner from coming into contact with child.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3)

Cases cited:

Stott & Holgar and Anor [2017] FamCAFC 152

Goode & Goode (2006) FLC 93-286
Sumner & Broad (2015) FCCA 1021
George & George (2013) FamCAFC 182
Deiter & Deiter (2011) FamCAFC 82

Applicant: MR DAMANI

Respondent: MS DAMANI

File Number: MLC 5027 of 2015

Judgment of: Judge Harland

Hearing date: 28 August 2018

Date of Last Submission: 28 August 2018

Delivered at: Melbourne

Delivered on: 28 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Brennan

Solicitors for the Applicant: Moores MDP Pty Ltd

Counsel for the Respondent: Mr Moisidis

Solicitors for the Respondent: Waters Lawyers

ORDERS

1. That the mother be restrained by injunction from allowing MR B to come into contact and communicate with, or approach or remain within 5 metres of [X] born 2012 (“the child”), or going or remaining within 200 metres of the Mother’s property at Suburb A, if the child is there.

2. The parties have liberty to apply at short notice to bring the matter back to court for review.

IT IS NOTED that publication of this judgment under the pseudonym Damani & Damani is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5027 of 2015

MR DAMANI

Applicant

And

MS DAMANI

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter is brought before me today for an urgent application in a case filed by the father with respect to [X].  The mother has filed a response and several affidavits in support of her position opposing the application in a case.  I am not going to set out all of the submissions in discussion with counsel this morning and all of the evidence, but I will highlight the following points.

3. The parties initially had proceedings before the Family Court which resolved in 2015.  This round of proceedings began in February 2017 when the father brought an urgent application seeking to vary the final parenting orders as a result of an assault which took place on 12 February 2017.  There were two children of the relationship, [Y], who is 10, and [X], who is six and a half.

4. The factual circumstances surrounding the assault which took place have been an issue of heated dispute in these proceedings and is reflected in the report that Mr P prepared in these proceedings in October 2017.  He had prepared a report for the family in the 2015 proceedings and will shortly be seeing the family to prepare an updated report.  In his 2017 report, Mr P identifies that the issues in 2015 were the very different parenting styles of the parents, the level of conflict between the parents and the negative impact of this on the children.

5. On 12 February 2017 there was an incident at the handover where the mother’s partner, Mr B, assaulted the father.  That took place in front of the children and the mother.  As Mr P identifies in his report, the parties give very different versions as to the circumstances of that assault and who was the initial aggressor in that situation, and Mr P refers to it and the family’s different versions at some length.

6. At [7] of his report he refers to the family’s presentation as being problematic throughout his dealings with them and with both parents functioning largely on the basis of an external locus of control. They both place blame and responsibility for what has occurred on the other parent and do not take any responsibility themselves. They have a fixed narrative in relation to each other and the problems that that causes and perpetuates and, certainly, that remains an issue currently, as is apparent from the material.

7. What is also apparent from the material and Mr P’s report is that [Y] is a highly anxious child, and whether [Y] is mentally diagnosed with some sort of disorder or pathology, the fact is that he is highly anxious, and his behaviour has certainly been difficult for both parents to manage, not just the mother.

8. What Mr P also identifies in his report is that [Y] in particular has been traumatised by witnessing the assault, and [X] has as well.  It is also apparent that [X] has a very different personality to [Y], and is a more robust child.  Mr P also makes the point in his report that the outcome of the assault proceedings against Mr B may have a significant bearing on the ultimately issues before this Court; and certainly the circumstances of the assault is one of the pivotal issues in this case, although it is not the only issue.

9. The father’s case is essentially that the mother prioritises her relationship with Mr B over the safety of the children, and she cannot be relied upon to ensure their safety.

10. The mother’s case is that the father has been relentlessly negative and undermining of her as a parent. She raises concerns that the children will be alienated from her if they are in the father’s care, and refers to the problematic relationship with [Y] and the very limited time that she is spending with him currently.

11. At the first return date before me, on 26 April 2017, orders were made that provide for [Y] to live with the father and spend time with the mother, and for [X] to live with the mother and spend time with the father.  Currently [X] spends five nights a fortnight with the father, and [Y] spends two afternoons of three hours each with the mother.  The mother points to the text messages that she annexes to her affidavits and also Mr P’s comments about the father’s behaviour reflected in the texts and also in a video that he saw in support of her concerns, and there can be no doubt that at times the father has been derogatory and negative towards the mother.

12. That does not take away from the complex issues in this case surrounding [Y]’s behavioural and emotional issues and the issues of family violence.  At the time Mr P prepared his October 2017 report, he concluded after making observations at [73] to [83] that based on the information available, maintaining the status quo was the least uncertain option.  What is also very clear from his report is that the outcomes for this family seems poor if the parents are not able to address very significant issues with respect to their communication, a focus on blaming each other and seeming inability to find a way of parenting together for the benefit of their children.

13. Mr P makes this very clear. In his final paragraph he refers to not being able to emphasise strongly enough the need for both parents to consider [Y] and his behaviour through a different lens, to address the reality that [Y] experiences things differently and has heightened levels of anxiety and fear about the future, whether rational or not.  It is also clear is that the situation over the past 18 months has been difficult, confronting and challenging for the adults and children involved.

14. This matter has a final hearing before me in December 2018 and the parties, as I have indicated before, are attending for an updated report with Mr P.

15. The urgent application was prompted by Mr B’s criminal trial, which took place over three days last week, where at the end of that trial, the Magistrate found Mr B guilty of intentional causing injury to the father and unlawful assault based on fear in a minor, and sentenced Mr B to six months’ imprisonment.

16. The father says that, given that Mr B is on bail, having lodged an appeal against his conviction and sentence, and coupled with the fact that there is only a limited intervention order protecting [X], which simply provides that Mr B is not to commit family violence against [X] but is permitted to remain living in the household, that these factors mean that [X] is now at an unacceptable risk if the current situation remains in place.

17. The father refers to things he says that both boys have said to him since the April 2017 orders were made, which cause him concern, about the mother’s protectiveness and compliance with orders, and highlights that on at least one occasion, as is conceded in the material, the mother brought Mr B into contact with [Y].  He also refers to comments that he says [X] has made which cause him concern.

18. The mother denies the father’s allegations.  She says that [X] has a positive relationship with Mr B and that they have developed a closeness.  Mr B has sworn an affidavit also referring to this. 

19. The mother also relies on an affidavit by Ms F, who is Mr B’s former partner and the mother of his two older children, and Mr S, who is the mother’s former partner and the father of the mother’s oldest child, [A].  Her position is that apart from the conviction, which is being appealed, there has not been any change in circumstance and that there have not been problems in the household with [X]. She points to supporting affidavits, where parents of the other children who spend time in the household with the mother and Mr B are not concerned about their children’s safety. 

20. Both Mr S and Ms F refer to Mr B being charged with assault and state that despite this they do not have safety concerns for their children whilst in his care, and Ms F goes further and states that she finds the charges out of character.  It is not clear what their knowledge is of the criminal proceedings and the fact that he has not only been charged but now convicted. 

21. The limitations placed on the Court when dealing with interim issues are well known and do not need to be repeated here.  What should be apparent from what I have said thus far is that there are many issues that are in dispute in this case that will not be able to be determined by the Court until the evidence is tested at a final hearing. The task that I have at this interim stage is to assess whether or not there is a risk to [X].  Given the fact that there is now a criminal conviction for assault which occurred in front of the children, the issue of risk is easily established.  That is just the first limb. 

22. It is then necessary to consider whether or not that risk is an unacceptable one.  The Full Court in the decision of Stott & Holgar and Anor [2017] FamCAFC 152 (“Stott & Holgar”) contains useful discussion about unacceptable risk, refers to the fact that it applies to various forms of risks, including exposure to family violence, and that the issue for the Court is balancing the nature and the degree of the risk in the particular case. In particular, the Full Court refers to Fogarty J’s comments that:

    Its formulation is all about balance.  In some cases a risk is acceptable when balanced against other factors and other orders.

23. The mother’s counsel drew the Court’s attention to the well‑known case of Goode & Goode (2006) FLC 93-286, which remains authority for the considerations the Court must give to the issues in interim parenting matters. Counsel particularly drew attention to a passage that begins at [66] and continues in [67], where the Full Court discusses the earlier decision of Cowling v Cowling (1998) FLC 92-801 (“Cowling”) which was a decision handed down after the 1995 amendments to the Family Law Act 1975, in 1998, and drew particular attention to [22] of the decision in Cowling, which refers to a child living in a well‑settled environment and that a child’s stability will usually be promoted by making of an order which continues that, unless there are strong or overriding indications to the contrary with respect to the child’s welfare, and that this would include, but not limited to, convincing proof that a child’s welfare would be endangered if that child remained in their living environment.

24. What is of concern is that the mother’s counsel failed to draw the Court’s attention to the following passages at [68] and [69], where the Full Court makes specific reference to [22] of Cowling’s decision and states that that passage, in particular, does not sit comfortably with the 2006 amendments to the Family Law Act, and goes on to say at [70] that:

    There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above.  While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed.  First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable.  Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable.  Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.

25. The mother’s counsel also relied on a decision of Judge Riley of Sumner & Broad (2015) FCCA 1021. That was a decision of Judge Riley’s after a seven‑day trial and concerns, what is referred to by the expert in that decision, alienating dynamics. The case here is quite differently to the situation there that’s after a final trial. I certainly accept the submissions and it is very clear from Stott & Holgar and other authorities that it is necessary to engage in a balancing act and to not simply look at the issue of the alleged risk without also considering the other factors set out in section 60CC(2) and 60CC(3) of the Family Law Act. As the Court made clear, in carrying out that balancing exercise, it may be that the Court is satisfied that the risk is an acceptable one rather than unacceptable because of countervailing balancing factors. 

26. The mother points to the fact that [X] has been living in a household with herself and Mr B since April 2017. She says that to change residence on an interim basis where the contested facts cannot be tested could have a devastating consequence for [X] and also for her own emotional wellbeing and capacity to parent if she does not have the support of her partner. She points to the fact that Mr B is currently on bail, that there is an intervention order in place and that if he was to breach his bail conditions or that intervention order he would be imprisoned. 

27. She says that the family is shortly to be further assessed and that the matters are returning to County Court with respect to the criminal proceedings and that in weighing up the competing factors that the Court must consider is that it would not be in [X]’s best interests to take the radical steps that the father is urging the Court to do. 

28. I refer to the decision of the Full Court in George & George (2013) FamCAFC 182, which was an appeal from an interim parenting decision, from a decision of a Judge who made orders for an interim change of residence after the release of a family report which expressed serious concerns about the father’s reactions to that report and consequent risks to the child if the parenting arrangements were not changed.

29. The Full Court referred to the trial Judge’s reasons where she identified that the report was untested, that the opinions expressed in the report were based on interviews with the parties and observations, and that it is a rare thing for a Court to make a change of interim arrangements simply because a family report has been released making certain recommendations. She correctly went on to observe, referring to Deiter & Deiter (2011) FamCAFC 82, that the fact that there are matters in dispute does not mean that the Court can ignore the concerns that are raised in that material.

30. The task that the Court is asked to undertake in this matter is by no means a simple one. It is very much an issue of balancing the competing factors.  It should not be seen that of itself the fact that Mr B has been convicted and sentenced to a term of imprisonment means that no further consideration needs to be given to issues concerning [X]’s welfare in his current living arrangements. 

31. Certainly it is true that Mr B is appealing that decision and that the appeal will be conducted by way of a hearing de novo and not by way of an appeal focusing on an error of law or material fact.  However, pending that appeal being determined, this Court must place significant weight on the fact that a Court has found beyond reasonable doubt that Mr B has been guilty of an assault against the father and against [Y]. 

32. Whilst it is also clear that the Magistrate was asked to make a full exclusionary intervention order protecting [Y], but did not do so, on the basis of not being satisfied that there had been incidents of violence against [X] since that assault, I accept the submission of the father’s counsel that this Court’s considerations are somewhat different to that of the Magistrate, and I must consider the best interests of the children as the paramount consideration.

33. The Department of Health and Human Services (“the Department”) has indicated to the Court, through its liaison officer, that there is a current open investigation with respect to [X], after a report was received on 16 August 2018, raising concerns for [X], as he was living with the mother and Mr B, and Mr B has been convicted of the offences to which I have already referred.

34. The report with respect to [X] has progressed to investigation, and that is currently being undertaken.  The liaison officer notes that the police have expressed their concern for [X] living with the mother and Mr B.

35. The father, in his orders, seeks that [X] come into his primary care, and that the mother be injuncted from allowing Mr B to come into contact with [X] and communicate with him.

36. The mother seeks that the father’s application be dismissed.

37. As I raised with counsel during submissions, the other option the Court can consider is [X] remaining in the mother’s care, provided that Mr B is excluded from the home and does not come into contact with [X]. The mother’s counsel has made very clear is that the mother would comply with such an order, although clearly that would cause her great difficulty, and place great strain on her relationship with her partner.

38. I have no doubt that the current circumstances and the criminal proceedings last week, and the outcome of those proceedings, has placed great strain on not only the mother and Mr B, but also the father, and the concerns that it raises. However, when I come back to considering all the issues I have to balance, and the issue about whether or not there is an unacceptable risk to [X] if I leave the current arrangements as they are, a factor that is significant which could be seen as both supporting and mitigating against making the orders is that the Department is currently investigating, the parties will shortly be seeing Mr P for an updated report and that the matter is coming on for hearing in a few months’ time. My view, considering those factors, I am satisfied that on the basis of the evidence before me, the allegations raised and the issues that are yet to be tested, that [X] would be at an unacceptable risk if I did not make any change to the arrangements.

39. My focus has to be on the interests of the two children who are the subject of the proceedings before me and the pressures that are currently apparent for the family.  In my view, the risk can be ameliorated by making orders restraining the mother from allowing Mr B to come into contact and communicate with [X] and going to or remaining within 200 metres of the mother’s property when [X] is living with her.  In my view, making that order would provide protections for [X] whilst also enabling him to continue to live with his mother and spend time with his father.

1. I have no doubt that this will be difficult for the mother, and it by no means follows that that will be the final arrangement, and, indeed, on a final basis, it would be somewhat unworkable. As there are continuing investigations and assessments under way, I will also make an order for the parties to have liberty to apply at short notice to bring the matter back before me for further review rather than waiting for the trial in December 2018.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  19 November 2018