DATES & HEW

[2014] FamCA 834

FAMILY COURT OF AUSTRALIA

DATES & HEW [2014] FamCA 834

FAMILY LAW – CHILDREN – Review of Registrar’s decision – Interim parenting orders – Where both parents make allegations of serious domestic violence by the other – Where there are two young children of the relationship – Where there is an Apprehended Domestic Violence Order for the protection of the father – Where the Registrar ordered that the children live with the father and have supervised time with the mother – Where the mother seeks orders that the children live with her – Where the children are currently living with the father and appear to be happy in his care – Where there is no expert evidence before the Court – Orders made that the children remain living with the father and spend time with the mother.

Family Law Act 1976 (Cth) s 60CC

APPLICANT: Ms Dates

RESPONDENT: Mr Hew

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 4714 of 2014

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 29 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Linden Legal

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

IT IS ORDERED

1. That pending further order the children H born … 2010 and B born … 2013 live with the father.

2. That the children spend time with mother:

   (a)       Each week from 9am on Sunday until the following Tuesday before the commencement of day care at 9am; and

   (b)       Each Thursday from 9am until 5pm; and

   (c)       On Christmas Day from 3pm until Boxing Day at 3pm.

3. That the mother’s time with the children be conditional upon:

   (a)       The children spending their overnight time at the home of the maternal grandparents; and

   (b)       That the mother does not consume alcohol at any time during the period the children are with her and for a period of 24 hours prior to commencement of the children’s time with her.

4. That the father deliver the children to the home of the maternal grandparents at 9am on Sunday mornings and 9am on Thursday mornings and the mother shall not be present, or in the sight or hearing of the father, on those occasions.

5. That the mother return the children to C Day Care at the conclusion of her time.

6. That both parties are restrained from making any critical or derogatory remarks in relation to each other within the presence or hearing of either of the children.

7. That both parties are restrained from discussing these proceedings, any issues arising out of these proceedings or any parenting matters with either of the children or within their presence or hearing.

8. That the mother submit to urine analysis under supervision and chain of custody upon the written request of the Independent Children’s Lawyer, not more than once per month, with such testing to take place within 24 hours of such request and to be conducted in accordance with the Australian/New Zealand standard 4308:2001 procedure for the collection, detection and quantification of drugs of abuse in urine (“the drug test”).

9. That the mother cause the drug test results to be forwarded to the Independent Children’s Lawyer and the father’s solicitor within 48 hours of their receipt.

10. That in the event that any drug test returns a positive reading, leave be granted to either party or the Independent Children’s Lawyer to relist the matter on seven days notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dates and Hew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4714 of 2014

Ms Dates

Applicant

And

Mr Hew

Respondent

REASONS FOR JUDGMENT

1. Ms Dates (“the mother”) and Mr Hew (“the father”) each allege that the other is a perpetrator of serious domestic violence.

2. The mother alleges that she was subjected to family violence throughout the whole of the relationship. She alleges that the father has pushed her, hit her, pulled her hair and inflicted bruising upon her. The father alleges that the mother has verbally and physically assaulted him, hit him, put a cigarette out on his face, bit him so as to draw blood, grabbed his testicles, kicked him and stabbed him.

3. This matter is being dealt with on an interim basis, in circumstances which will be described later in these reasons, and therefore it is not possible to make any findings about the accuracy or veracity of the allegations of each of them.

4. Perpetrators of family violence can also be victims of family violence and I make no assumption that either party has been either solely the victim of family violence or solely the perpetrator of family violence.

5. There is evidence before the Court in the form of photographs which show the mother with significant bruising and photographs which show the father with significant bite marks and with stab wounds.

6. For the purpose of determining what arrangements should be put in place for the children, I can proceed only on the basis that each parent makes significant allegations of violence by the other.

7. These parties have two children H born in 2010 and now aged three and a half and B born in 2013 and now aged almost 14 months.

8. On 27 July 2014 there was a violent incident in the home between the parents. H was present and witnessed the incident. In the course of that incident the father was stabbed by the mother with a screw driver. The mother also suffered injuries.

9. The police were called and the mother was charged with reckless wounding and assault occasioning actual bodily harm. Those charges are to be heard in December 2014 in the Local Court.

10. An Apprehended Domestic Violence Order for the protection of the father was also taken out by police as a result of the incident and a consequence of the order was that the mother was not permitted to remain in the home.

11. The father brought an application in the Family Court of Australia which was heard by Senior Registrar Campbell (“the Senior Registrar”) on 31 July 2014. The Senior Registrar ordered that the children live with the father and have supervised time with the mother from 9am until 12 noon each Tuesday, Wednesday, Thursday and Saturday, the supervision to be performed by a professional agency. The Senior Registrar also ordered that the mother be restrained from consuming alcohol for a period of 12 hours prior to the children spending time with her and during any period when the children were with her.

12. The children’s time with their mother was to be supervised by an agency, D Supervisors, and reports were to be prepared after each occasion.

13. On 29 August 2014, the mother sought to vary the orders of the Senior Registrar but was unsuccessful. In the proceedings before me the mother seeks to review the orders made by the Senior Registrar.

14. In the proceedings before me the children were represented by an Independent Children’s Lawyer (“ICL”).

15. The mother now seeks orders that the children live with her and spend time with their father each Saturday from 9am to 5pm, and each Monday and Friday between 2pm and 5.30pm. Significantly, the mother asks that the children not spend any overnight time with the father until December 2014, notwithstanding the fact that they have been in his primary care since 31 July 2014.

16. The father seeks to maintain the orders made by the Senior Registrar.

17. The task which now presents itself is to determine, by hearing de novo, what arrangements should be made for the care of the children in the short term until such time as evidence in relation to the issue of their best interests can be properly tested and assessed. Eventually the Court will have the benefit of an assessment by a single expert who is a child and family psychiatrist. The single expert will conduct interviews on 17 December 2014. No expert evidence is presently available to assist the Court in this exercise.

ARRANGEMENTS FOR THE CARE OF THE CHILDREN BEFORE SEPARATION

1. In October 2012, when H was less than two years old, he started attending at C Day Care for two days each week. In addition, H was cared for by a nanny for up to two days per week.

2. In January 2013 H attended at C Day Care from about 9am to 5pm on Tuesday, Wednesday, Thursday and Friday. In addition the parties, from time to time, employed five different carers for the children.

3. The father was employed fulltime and the mother was employed in her own business and she was able to do some of that work from home.

4. Between November 2013 and 7 March 2014 the parties and the children lived with the mother’s parents. H slept in the same bedroom as his father and B slept in the same bedroom as her mother.

5. In March 2014 the parties and the children moved into other premises. The mother occupied the master bedroom, the father had his own room and H had his own room. B slept in the mother’s room.

6. When B was five months old she started attending at C Day Care on Tuesday, Wednesday and Thursday, initially for short days, and eventually also between 9am to about 5pm.

7. When B was about eight months old one of the workers from C Day Care was employed to care for B at home on Fridays from about 12.30pm.

8. In June 2014, the father ceased employment and the mother continued to work. The parents agreed that the nanny would not come to the home on Fridays and that the father would look after the children on Mondays and Fridays. The father then took over most of the responsibility for delivering the children to C Day Care and for collecting them.

9. Those are the arrangements that were in place up to and including 27 July 2014 when the parents separated.

SECTION 60CC

1. Each party submits that it is in the children’s best interests that they have a meaningful relationship with both of their parents and each party submits that it is necessary to protect the children from physical and psychological harm perpetrated by the other. Neither parent suggests that either has been violent towards the children.

2. It is the father’s case that H has been adversely affected by having witnessed the incident on 27 July 2014. Neither party suggests that B has been subjected to any psychological damage or family violence.

FAMILY VIOLENCE

1. The incident that occurred on 27 July 2014 looms large in these proceedings. On behalf of the mother, it was submitted that this incident has been given an exaggerated significance because it is but the last of a series of incidents of family violence.

2. On the case of either party, there has been a series of violent incidents between them. This incident is the most recent and precipitated the separation of the parents. It is also significant that H was present for the whole of the incident. In so far as it is possible to determine what occurred on 27 July 2014, and in order to demonstrate the seriousness of the events, it is necessary to examine the evidence of the parties.

3. There is some objective evidence. The mother consulted her General Practitioner on 28 July 2014. Photographs were taken of her bruising.

4. The police took photographs of the father’s stab wound and the father annexes to his affidavit photographs of blood stained bedding. The father also annexes to his affidavit photographs showing distinct bite marks, which he says were inflicted by the mother on an earlier occasion.

5. Some facts are not controversial. The incident occurred on a Sunday. The father took the children to the zoo and the mother went to work. The father returned home from the zoo with the children and put them down for a nap. The mother returned home at about 5.45pm and an argument ensued between the parents. The father left the house. He returned at about 7.30pm or 8pm.

6. The mother in her affidavit sworn 25 August 2014 says that at about 8pm, H was still awake and the father took H into a bedroom to watch television with him. H was still awake at about 9.45pm and he came and sat on the couch with the mother.

7. The father remonstrated with the mother about allowing H to watch a television program which the father believed was unsuitable and suggested to the mother that H should be in bed. The parents argued about the reasons for H still being awake. The father picked H up. H was crying. The father took H and went into the bedroom which he occupied and locked the door.

8. The mother, for reasons which are completely inexplicable, decided to open the locked door by taking the pin out of the lock with a screwdriver. As she was trying to remove the pin from the lock with the screwdriver, the father opened the door. He had his Iphone in his hand and started filming. The film was ultimately tendered in the proceedings but was of little assistance.

9. A scuffle ensued between the parents in circumstances which are disputed. It is not however disputed that the father was stabbed by the mother with a screwdriver and that H was present and crying.

10. The mother in her affidavit says that the father was the aggressor in the incident and that she was defending herself. That is debateable. No doubt at some future time a court will make a determination, upon the proper testing of the evidence, about that issue. At the present time, however, it suffices to say that had the mother not made the decision to disable the lock on the door to the room where she knew the husband and the three year old H were, this regrettable incident would not have happened and H would have been saved having witnessed his mother stabbing his father.

S 60CC(3)

1. The children are aged three years and almost 14 months respectively. They have not expressed any views.

2. The mother submits that the Court should accept that she is the primary carer for the children and has been so during the whole of the relationship, notwithstanding the fact that they have lived in the care of their father for the last two months.

3. The father says that he has been strongly involved with the care of the children and in particular with H’s care. It would appear that, at least from the time when the father ceased employment in June 2014, the mother thought it was appropriate that the father should be the carer for the children at the times when she was working. These children have been cared for by nannies and in long day care. They are accustomed to multiple carers. Their parents agreed that those arrangements were appropriate before they separated. It is not possible, on the evidence before me, to determine the nature of the children’s relationships with each of their parents except to say that, according to the evidence of the supervisor from D Supervisors, they appear to have a close and loving relationship with both their parents.

THE NEED FOR SUPERVISION

1. These children have had 27 occasions of professionally supervised time with their mother. Nothing in the reports of the supervisors suggests that ongoing supervision is necessary.

2. It is submitted on behalf of the father that the version of events which is given by the mother in her affidavit is not consistent with or supported by the supervisor’s version of the visits. I accept that the mother appears to have exaggerated H’s behaviours from time to time. For example, on 5 August 2014 the mother reports H has been crying and inconsolable. The impression gained from the mother’s affidavit is that this behaviour continued at least for most of the visit. That impression is not supported by the supervisor’s report where the episode of H being distressed and crying occupies three lines of a six page report.

3. Similarly on 7 August 2014, the mother reports that H was angry and fighting with her for the whole of the visit. The supervisor, however, reports H as being happy when she arrived, playing contentedly. The supervisor reports H responding to his mother’s enquiry about him saying to her “I am not okay” and on an occasion when the mother wanted to play with H, H told his mother to go away. H was excited about a new puzzle and played with his grandmother and laughed out loud when helping to wrap up a “Jack in the box” for B.

4. The father relies upon the discrepancies between the mother’s evidence and that of the contact supervisor to justify the need for ongoing supervision of the mother’s time with the children. The cost of supervision is $1,419.62 per week. The mother pays the whole of these costs. There is no evidence before me of the mother’s financial position, other than that she anticipates earning directors fees of approximately $20,000 in the year ended 30 June 2014. The father is not currently employed. He was asked by letter to contribute to the cost of the supervision but replied that he was unable to afford to do so. Before me, Counsel for the father said that the father was prepared to contribute up to $200 per week for supervision.

5. The father asks the Court to continue the supervision but proposes a less expensive supervisor. Nevertheless the costs will be some $700 per week.

6. I do not accept that the purpose of supervision, in circumstances such as this, is to gather evidence. Rather the Court would order supervision where it was necessary that the children be supervised and protected because of serious concerns about the likelihood that they would be injured or mistreated either physically or psychologically in the care of a parent. On all of the evidence contained in the 27 supervisor’s reports it appears that no such concerns are present here, and I do not propose to continue the order for supervision.

WHAT ARRANGEMENTS SHOULD BE PUT IN PLACE?

1. The most significant factor for the Court to consider is the effect on the children of changing their circumstances at this time.

2. In evidence were 27 reports of the contact supervisors between 2 August 2014 and 24 September 2014. It is notable that in each of the reports the supervisor describes the children as being happy in the care of their father when they were collected, as being excited about seeing their mother and their grandparents and as being happy to see their mother when they arrived at her home. On no occasion does the supervisor suggest that the children were unhappy or distressed at the end of the visit when they left their mother. These children appear to be transitioning calmly and happily between their parents.

3. There has been a great deal of upheaval in the lives of these children. Their parents separated, in circumstances which must, at least to H, have been terrifying and distressing. On 27 July 2014, they were taken to their maternal grandparent’s home by their mother. On 31 July 2014 they were returned, in accordance with the orders of the Court, to the care of their father. They have been in his care ever since.

4. The only reliable evidence before me of the children’s current presentation is that which is contained in the supervisor’s reports. They appear to be happy in the care of their father, and happy to return to his care after spending time with the mother. The supervisor reports some tensions between H and his mother but it would be irresponsible to speculate upon the reasons for those tensions. Counsel for the mother speculates that the difficulties in H’s behaviour, in the care of his mother, could be because he is missing his long term primary carer. Equally it is possible that H’s difficulties, which do not appear to be serious, in the care of his mother could have their origins in the incident he witnessed on 27 July 2014.

5. At some future time, another court, with the assistance of the report of a single expert, will be in a better position to make findings about that issue.

6. The ICL submits that the children should remain in the care of their father and spend time with their mother each week from Sunday morning until Tuesday before the commencement of day care. Counsel for the ICL submitted that this arrangement would give the children some consistency and relieve them from the burden of very frequent changeovers. On behalf of the ICL it was submitted that supervision was unnecessary, but that the consequence of dispensing with supervision is that it becomes more difficult to organise changeovers in circumstances where, given the events that occurred the last time the parties were together, the children ought not to be subjected to the possibility of further appalling behaviour by either or both of their parents.

1. Whilst the ICL does not submit that the children’s time with the mother should be supervised, it is the position of the ICL that the overnight time should be exercised at the home of the maternal grandparents. Given that the mother lives with her parents that should not pose any hardship.

2. The regime which is proposed by the ICL will allow the children to spend sufficient time with each of their parents so that their relationship with each parent will be maintained while not imposing on them too many changeovers. However, having regard to the age of these children, the period between Tuesday morning and Sunday morning is too long for them to be away from a parent and I propose that they also spend Thursday with the mother from 9am until 5pm. She can decide whether they attend day care for part or all of Thursday.

3. This regime will see the children in their mother’s care on Sundays and Mondays when they are not normally in day care and also on Thursdays. They will be in their father’s care on Fridays and Saturdays when they are not normally in day care and will otherwise be in his care before and after they attend day care.

4. This is not the regime which is advocated by either parent. The mother wants the children in her care with no overnight time with the father. The father wants the mother’s time restricted to mornings under supervision.

5. The father has expressed his hope that the matter can be resolved on the basis that the parents share the care of the children. The arrangement which will be put in place takes a step towards such a resolution.  

ALLEGATIONS ABOUT THE MOTHER’S USE OF ALCOHOL

1. The father alleges that the mother drinks to excess and her capacity to care for the children is affected by her consumption of alcohol. The mother denies excessive consumption of alcohol.

2. On the mother’s own evidence she was drinking both before and after the incident on 27 July 2014. This is yet another of those issues which will properly be determined at a defended hearing. In the meantime it is somewhat concerning that the mother proposes to the Court that the requirement for regular urinalysis testing for alcohol presence should no longer apply.

3. I consider it appropriate that the mother should continue to be subjected to testing.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 October 2014.

Associate: 

Date:  2 October 2014