Demyan and Beattie

[2014] FamCA 1074

FAMILY COURT OF AUSTRALIA

DEMYAN & BEATTIE [2014] FamCA 1074

FAMILY LAW – PRACTICE & PROCEDURE – Application to re-open parenting proceedings – where final orders were made in 2012 providing for very limited contact between the child and the father, in circumstances where the father had violently assaulted the mother – where what is at stake is the child’s entitlement to have a meaningful relationship with the father – where the father has taken sufficient steps to establish a reduction in the risk of harm he represents to the child, such that there should be some further inquiry into arrangements for time and communication – application to reopen the case is granted – parties to exchange a Minute of Interim Orders

In the Marriage of Rice & Asplund (1979) FLC 90-725

Marsden & Winch (2009) 42 Fam LR 1

APPLICANT: Mr Demyan

RESPONDENT:	Ms Beattie
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid New South Wales

FILE NUMBER: (P)NCC 2026 of 2009

DATE DELIVERED: 21 November 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 20 November 2014

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT:	Fielden & Associates
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid New South Wales (Mr Scally)

Orders

1. That the Application to re-open the parenting proceedings is granted.

2. That the Father shall provide to the Mother, the Independent Children’s Lawyer and the Court a Minute of Interim Orders sought by him by close of business on 5 December 2014.

3. That the Mother shall provide to the Father, the Independent Children’s Lawyer and the Court a Minute of Interim Orders proposed by her by close of business on 19 December 2014.

4. Further consideration of this matter is adjourned to 9.30 am on 23 December 2014 for allocation of a date for hearing of interim issues.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demyan & Beattie 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 NEWCASTLE

FILE NUMBER: NCC 2026 of 2009

Mr Demyan

Applicant

And

Ms Beattie

Respondent

And

Independent Children’s Lawyer

Reasons for Judgment

1. This is an application made in person by the father for parenting orders for one child, aged five years and seven months (‘the child’). 

2. The father is seeking both interim and final orders for time and communication with the child. If he were to be entirely successful with that application, such orders would culminate in the child spending alternate weekends, half school holidays and other special times with the father.

3. There is no dispute over residence. The child lives with the mother. The mother opposes the application and seeks its dismissal. 

4. The application came first before me on 23 September 2014. The mother had been served with the application but was absent from Court without explanation. On that occasion, I appointed an Independent Children’s Lawyer and noted that the issue for determination was whether there had been a sufficient change of circumstance to justify embarking on another hearing. The matter was adjourned.

5. On 7 November 2014 all parties appeared but the matter was further adjourned to enable inspection of documents anticipated to be produced in response to subpoena issued by the Independent Children’s Lawyer. 

6. On 20 November 2014 all parties were present and submissions were received on the preliminary questions, including detailed and thoughtful written submissions on behalf of the mother.[1]

   [1]Exhibit 3

The evidence

1. The documents relied on by the parties were as follows: 

   a)Application of the father filed 23 June 2014;

   b)Affidavit of the father filed 23 June 2014;

   c)Response of the mother filed 5 November 2014;

   d)Affidavit of the mother filed 5 November 2014;

   e)Records from K Psychologists and from L Contact Centre where the first two of the supervised visits between the child and the father took place were tendered into evidence.

The Law

1. The decision of the Full Court in Marsden & Winch (2009) 42 Fam LR 1 provides mandatory considerations in determining whether to permit a further hearing about a child when a change of circumstances is raised by a party seeking to reopen. The Court must look at these elements:

   (1)The past circumstances, including the reasons for the decision and the evidence upon which it was based;

   (2)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and

   (3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. For example, small changes may not have sufficient benefit to compensate for the disruption caused to a child by re-litigation.

   Also, the rule established by the decision in Rice & Asplund[2] was confirmed as remaining a manifestation of the best interests’ principle. 

   [2](1979) FLC 90-725

Past circumstances

1. The most recent parenting orders were made on 7 November 2012 by Austin J after a three day final hearing. Those orders provided for time between the child and the father on two periods each year (in March and September), each period to be of two hours in a nominated contact centre. There was also provision for communication by letters, cards and gifts. Reasons for Judgment delivered in November 2012 provide the basis for those orders being made.[3] 

   [3]Beattie & Demyan [2012] FamCA 916

2. There had been previous final parenting orders made in March 2011, which provided for the mother to have sole parental responsibility with a graduating program for time for the father. The mother had not been compliant with those orders prior to that hearing, nor was she compliant after it. 

3. When the matter was heard in October 2012, the child had not seen the father for about 14 months, other than briefly for a family report interview.  However, there was an event on 7 September 2011 which had an impact on the outcome. His Honour said this at par [11]:  

   Late on that evening [that is, 7 September 2011] the father assaulted the mother at her home in the presence of the child. The mother sustained severe bruising and both she and this child were understandably highly distressed. The father was convicted of the assault. Even though he appealed his conviction, the appeal was dismissed and the conviction confirmed. The father was sentenced by way of a good behaviour bond for 18 months and is the subject of a family violence order protecting the mother until its expiration in November 2013.

4. His Honour gave the details of the assault at par [64]:

   Late that evening the father hid in the mother’s yard and savagely assaulted her when she arrived home with the child. The father knocked the mother to the ground from behind and then repeatedly kicked her whilst she lay prone. The child was spilled from her grasp by the force of attack, which attack the child witnessed. The mother sustained gross bruising, which even the father admitted was “horrific”.

5. There is a further aspect to this assault set out in his Honour’s reasons at par [67]:

   The father has never wavered in his denial of responsibility for the assault. He maintained his innocence before the State courts at first instance and on appeal, he told the family consultant in February 2012 and again, in April 2012 that he was not guilty, he deposed to his innocence in his affidavit, and he held to his denials in cross-examination.

6. His Honour goes on to comment on the denial of responsibility at par [70]:

   The father’s denial of responsibility for the assault of the mother was particularly contumelious because he asserted her identification of him as the culprit was a vindictive act of spite, or a “pantomime” as he described it. His failed defence of the charge was not apparently conducted on the basis that the mother had honestly mistaken him for the culprit. His lie by denying responsibility was therefore compounded by his lie that the mother way lying.

7. And finally, in relation to the impact on the child, his Honour said this, par [73]:

   The family consultant said he expected the child would have been “terrified” by the assault he witnessed the father perpetrate upon the mother, which opinion is vindicated by reliable evidence that the child was emotionally damaged by the event. In May 2012, many months after the assault in September 2011, the child’s pre-school teachers made contemporaneous notes of the child’s report about the father striking the mother. The child also reported being hit by the father, but since he had not seen the father for many months that was unlikely to be a true report of historical events. Rather, it is more likely evidence of the child dwelling on the trauma he experienced through witnessing the assault upon the mother and wondering how the father’s violence may affect him.

8. On 25 October 2011 the mother filed an Initiating Application and sought an interim suspension of the March 2011 orders. Her Amended Application included an order sought that the child spend no time with the father and not communicate with him. 

9. The father responded with an application for the child to live with him.  It was a bold application in the circumstances, which he modified during the course of the 2012 hearing. In his Honour’s Reasons in March 2011 and again in November 2012, after assessing and dismissing an allegation by the mother that the father had abused the child, his Honour found the father, “Posed no risk of physical abuse to the child”. 

10. However, in relation to family violence, his Honour concluded that the child required protection against the risk of psychological harm through his exposure to family violence committed by the father in September 2011. His Honour also found that the mother has no willingness or ability to facilitate and encourage a close and continuing relationship between the child and the father.[4] His Honour found that the father does have the willingness and capacity to facilitate a close and continuing relationship between the child and the mother.[5]

    [4]Beattie & Demyan [2012] FamCA 916, par 81

    [5]Beattie & Demyan [2012] FamCA 916, par 92

11. Both parents were found to have a deficiency in their capacity as parents; both being unable to meet certain emotional needs of the child. In the case of the father, the dreadful assault of the mother in the child’s presence. In the case of the mother, her single minded mission to eliminate paternal influence in the child’s life. Adverse elements of attitude to parenthood were identified in relation to the father’s substantial arrears in child support and in relation to the mother’s failure to complete the post-separation parenting program. These are the circumstances and evidence on which the orders were based.

Is there a likelihood of orders being varied in a significant way?

1. The father provides evidence that he has reflected on the outcome of the hearing in 2012 and the reasons for it. Significantly, the father listened to the advice of the Independent Children’s Lawyer and to the advice and direction in the judgment of Austin J as to the importance of an admission of guilt and contrition.  His Honour said this at par [69]:[6]

   As the Family Consultant unremarkably observed, any person who is capable of such savagery and refuses to acknowledge responsibility and express remorse is unlikely to change their behaviour patterns. The first step of rehabilitation is admission of fault and expression of contrition.  It is trite to observe, but past behaviour is a reliable predictor of future behaviour.

   [6]Beattie & Demyan [2012] FamCA 916

2. The father attended an 18 week course for men, run by Relationships Australia, titled ‘Taking Responsibility’. He attended 17 of the 18 course sessions and four out of four of the individual meetings for himself and presumably, the coordinator. 

3. In submissions, the father referred to the embarrassment he felt on attendance at that course; that drug addicts and criminals were part of the group and that at least, initially, he did not feel he belonged there:

   I had to take responsibility for the assault. It was hard and embarrassing.

4. The father also said on week 1 he was upset about being at the course at all, but, by week 18, he had learnt a lot. The father also sought advice from an experienced psychologist about how to manage and develop the relationship with the child through the small windows of opportunity presently open to him.[7] 

   [7]Affidavit of father filed 23/06/2014, Annexure ‘I’

5. The psychologist in his report expressed the view that the father had made good use of the counselling which had been provided to him on this topic and that the psychologist had observed, from viewing a video, that techniques had been implemented and that there were positive interactions to be seen. That is untested evidence and would be a matter for a final hearing, but I note that that is the observation in the document. 

6. The affidavit of the father acknowledges perpetration of the assault on the mother and further acknowledges the mother’s concerns and fears about the father being in the child’s life.[8]  He further acknowledges the reality of those fears. 

   [8]Affidavit of father filed 23/06/2014, par 5

7. The father also set out what he had learned from the course he attended with particularity, including changing his behaviour and acknowledging his impact on others.[9] He provided evidence of very positive times between himself and the child. I accept that those words are an accurate description of the observations in the report. 

   [9]Affidavit of father filed 23/06/2014, Annexure ‘H’

8. For her part, the mother does not accept to any extent that the father has changed. The thrust of her submissions was that the father is paying lip service to what he was directed to do by way of acknowledgement of wrongdoing, contrition and remorse. The mother also points to reports from L Contact Centre in support of her view that the father has not changed his aggressive and belligerent ways. I consider that those documents support such a view to some extent, but not entirely.[10] 

   [10]Exhibit 2

9. There is reference to a conversation on 23 August 2013 between the father and an officer of L Contact Centre,[11] where the father was using a loud voice on the phone and was expressing his disappointment both about speaking to somebody who was not the object of his call and about the issue of money, that is, the costs of visits and reports. The officer from L Contact Centre noted that the father’s tone and voice were aggressive:

   I informed [the father] that I would not continue the conversation with him as I was finding his tone and voice aggressive. [The father] remarked that he was finding me frustrating. I stated that for the conversation to continue he would need to calm down. [The father] said he was calm.

   [11]Exhibit 2, flag M9

10. Significantly, the officer chose to continue the conversation to conclusion, which ended without further difficulty. That document suggests that the father is hardly transformed, but the conversation did continue, which suggests a moderation of a rather angry start. 

11. There is a further reference to a conversation on 21 November 2013,[12] which was an argument between the father and an officer from L Contact Centre over what was contained in a report of a contact visit. 

    [12]Exhibit 2, flag M11

12. The father had asked for reports to be prepared and was paying for them. He was disappointed to find that there was very little, in his view, about the actual experiences between father and child. It is possible to infer from that document that the father became somewhat confronting and brash. However, what he was raising was a concern that the child’s body language at a crucial time had not been described. I note that the author of the report made a decision to amend the report to include the child’s body language and let the father know that she had done so. 

13. There is an email from an officer of L Contact Centre to somebody else responsible for supervision of time.[13] She quotes the words of the father to her, obviously with a view to her having formed an adverse view of his attitude and tone, those words being in response to the father having to speak to this officer and not somebody more senior:

    I’m a top-shelf businessman…  I want to talk to the person at the top, not a tadpole.

    [13]Exhibit 2, flag M12

14. These words could certainly be interpreted as pompous, even arrogant, but what followed was that there had been a discussion in reasonable terms between the officer and the father, and he was invited to itemise his concerns during the course of the conversation. The officer notes that at the end of the call the father’s voice was softer and he was not interrupting conversations.  By the end, he was asked if he was happy to leave the conversation, and he agreed.  The officer went on to report that she was quite content, happy to be a part of any future processes if needed. 

15. This document is consistent with the father’s evidence of being emotional but not aggressive, from his perspective. He may well have been experienced as somewhat aggressive, forthright and loud, but it is a matter of significance that the conversations were able to be moderated and to be concluded successfully.

The nature of the likely change and the potential detriment to the child

1. Since the orders of 7 November 2012, there have been four periods of contact between the child and the father; in May and October 2013, facilitated by L Contact Centre, and in either March or May and in November 2014, facilitated by an organisation called M Org. The father has persisted with the arrangements and coped on each occasion with the child’s initial reluctance and uncertainty and the need to reintroduce himself and to relax the child after a long break of up to six months. 

2. The mother gives evidence that she feels anxious when she thinks about the father and has continued to take anti-anxiety medication since the assault three years ago. She remains fearful, particularly that her hope that things could “go back to normal” will be dashed. I take those matters into account. It is entirely understandable that such a vicious assault would leave the mother with an even stronger wish to exclude the father from her life forever. I also note that there is no evidence of the mother actively preparing the child, supporting and encouraging him getting to know the father. Importantly, there is also no evidence of any efforts she made to sustain memories for the child with photos or positive comments in the six-month gaps. I note with concern that after the first visit in May 2013, the child’s first words to the mother were, “He didn’t hurt me.” Why the child thought that was a possibility reflects rather poorly, potentially, on his preparation for the visit. 

3. In those circumstances, it does seem likely that more extensive orders for time could be made so the child could carry the positive memories reflected by the 2013 reports from one visit to the next so that the relationship could develop.  In my view, that factor alone justifies re-opening the litigation, despite the immense amount of time these parties have spent in court already throughout the child’s life. They separated either just before or soon after he was born, and the litigation commenced within a few weeks of that. 

4. What is at stake in this application is the child’s entitlement to have a meaningful relationship with the father. Safety from psychological harm through exposure to family violence was the priority in the decision in November 2012, but the possibility of a meaningful relationship developing was also a part of those reasons. 

1. There is presently a relationship between the father and child made tenuous by the long periods of time between very short visits. The father has done all that was suggested to him would be helpful in moderating his stance and attitude.  In my view, he has taken sufficient steps to establish a reduction in the risk of harm he represents to the child such that there should be some further inquiry into arrangements for time and communication.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 21 November 2014.

Associate: 

Date:  3 December 2014