DOUGLASS & JAEGER

[2019] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOUGLASS & JAEGER [2019] FCCA 662

Catchwords:
FAMILY LAW – Parental responsibility – rebuttal of presumption – family violence – lack of insight on the part of the mother – supervised time orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA

Moose v Moose (2008) FLC 93-375
M v M (1988) 166 CLR 69-235
Napier v Hepburn (2006) FLC 93-30C

Applicant: MS DOUGLASS

Respondent: MR JAEGER

File Number: BRC 9 of 2011

Judgment of: Judge Egan

Hearing date: 26 February 2019

Date of Last Submission: 26 February 2019

Delivered at: Brisbane

Delivered on: 26 February 2019

REPRESENTATION

Applicant: Ms Douglass in person

Respondent: Mr Jaeger in person

Counsel for the Independent Children’s Lawyer: Mr Bunning

Solicitors for the Independent Children’s Lawyer: Sarah Cleeland Lawyers

IT IS ORDERED ON A FINAL BASIS THAT:

1. The Father shall have sole parental responsibility for the children [X] born on … 2007 and [Y] born on … 2009.

2. The Father shall attempt to confer with the Mother prior to making a decision in the exercise of his sole parental responsibility but will ultimately be at liberty to make such decision himself.  In the event that the Father makes a decision in the exercise of his sole parental responsibility then he will inform the Mother of the decision he has made and the reason for making the decision as soon as he can. 

3. The children shall live with the Father.

4. The children shall spend time with the Mother every second weekend on either a Saturday or Sunday, supervised by Contact Centre, at such times as can be facilitated by Contact Centre, with the Father to pay 2/3 of the costs of the use of that Centre and the Mother to pay 1/3 of the costs. 

5. Only the Mother and her child [Z] shall attend Contact Centre and the Mother is restrained by injunction from bringing any other person/s to the supervised contact unless agreed to in writing by the Father and the Contact Centre. 

6. The Mother shall communicate by telephone with the children each Tuesday and Thursday between 5.30pm and 6:00pm. 

7. The parents shall be at liberty to attend all school functions to which parents are invited including, but not limited to, Sports Days, Carnivals, Concerts, Plays, Fetes, Parent/Teacher meetings and the like and the Mother not to remove the children from school.

8. A copy of these Orders shall be conveyed to the children’s school by the Independent Children’s Lawyer, prior to her discharge.

9. The parents take all steps necessary with the Principal/Secretary of the school at which the children are enrolled to enable them to each receive at his/her address and at his/her expense, copies of the children’s school reports, school photographs and newsletters.

10. The parents by these Orders consent to and authorise all health care providers, educational experts and extra-curricular activity providers involved with the children from time to time to liaise directly with them at his/her request and at his/her expense and the parents immediately provide the full names/addresses and contact telephone numbers of such health care providers, educational experts and extra-curricular activity providers to each other in the Communication Book. 

11. Each parent contact the other in the event of any medical or other emergency involving the children whilst in their respective care.

12. Neither party shall physically discipline the children nor shall they allow any other person to physically discipline the children.

13. Neither parent shall denigrate the other and shall remove the children from any person denigrating the other parent, in the presence or hearing of the children.

14. Neither party shall consume any illicit substances, whatsoever, during any time that the children are in their care.  .

15. Each of the parents are at liberty to provide a copy of these Orders, any of the reports of Ms A and the psychiatric report of Dr B to any helping professional (such as counsellors and psychologists) they engage.

16. Within seven (7) days of the date of these Orders the Father shall submit to a hair follicle test such testing to be in relation to the presence of illicit substances and in that regard:

    (a)The Father shall bear the costs solely of that testing,

    (b)The Father is restrained by injunction from cutting any hair on his head or body to less than three (3)cm in length prior to undertaking the test,

    (c)The Father shall attend for the testing within seven (7) days of the date of these Orders at an institute that undertakes such testing.  He shall notify the Independent Children’s Lawyer once the test is undertaken of the institute upon which he attends to undertake the test,

    (d)Upon receipt of the test results the Father shall immediately convey the results of the test to the Independent Children’s Lawyer,

    (e)The Independent Children’s Lawyer has liberty to apply. 

17. The Independent Children’s Lawyer has liberty to apply to the chambers of Judge Egan for her discharge on the giving of three (3) days’ notice, but not before three (3) weeks from the date of these Orders.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9 of 2011

MS DOUGLASS

Applicant

And

MR JAEGER

Respondent

REASONS FOR JUDGMENT

1. The current proceedings were commenced by the applicant mother by initiating application filed on 3 March 2016. There was an affidavit filed in support of that initiating application, together with a notice of risk.  There has been a paucity of affidavit evidence filed by the parties in these proceedings and none of it is up to date.  The proceedings involve two children, namely, a female child born of the union of the applicant and the respondent on … 2007 (that child is currently 11 years and four months of age) and a male child born on … 2009 (that child is 10 years of age).

2. A consent order was made by Judge Turner on 18 April 2018. That order, relevantly, provided until further order that the applicant and the respondent have equal-shared parental responsibility for the children, and that the children live with the father. The order also made provision for the children to spend time with the mother each weekend on a Saturday or Sunday supervised by the Suburb C Children’s Contact Service at such times as could be facilitated, the parents to equally share the costs of such time.  Other ancillary orders were made in relation to communication between the applicant mother and the children.

3. Provision was also made for the parents of the children to be at liberty to attend all school functions to which the parents were invited, including, but not limited to, sports days, carnivals, concerts, plays, fetes, parent-teacher meetings and the like on the condition that the mother was not to remove the children from the school.  It is common ground between the parties that the mother has not seen the two children since in or about July 2018.  There were a number of reasons for that.  During the course of the hearing, Mr Bunning of Counsel for the Independent Children’s Lawyer took the Court to subpoenaed material which was in two bundles respectively marked exhibits 1 and 2. 

4. The subpoenaed material which was referred to during the course of cross-examination of the applicant might conveniently be referred to under a number of headings as follows: 

Suburb C Contact Centre

1. The documentation obtained from the Suburb C Contact Centre firstly was noted as recording that such contact centre cancelled its arrangements involving contact between the mother and the two children on 8 July 2018.  During cross-examination, the mother admitted that it was cancelled because of non-payment of contact centre fees and charges. The documentation is otherwise of note. It records that on an occasion of contact on 1 April 2018 there was a note of the applicant’s mother (who was then present for the purpose of contact) having hit the child, [Y]. 

2. During cross-examination, the applicant mother admitted that such hitting contact between her mother and the child, [Y], had occurred, the mother seeking to justify the child, [Y], being hit, on the basis that such child had first hit her mother. It was recorded that the supervisor had said that there was to be no hitting, to which the grandmother agreed.  In a further note in relation to contact at the centre on 1 July 2018, it was recorded that the grandmother was, at times, unsettled with [Y]’s behaviour, as well as behaviour of the mother’s youngest child, that child being born of the union of the applicant with a man other than the respondent. 

3. It recorded that the grandmother was snapping at the children, telling both of them off for misbehaving.  The attitude of the mother to that was that such action by the mother was justified when the children were fighting.  Another note of contact on 24 June 2018 recorded examples of the applicant’s mother grabbing [Y] so as to restrain him.  Again, the mother agreed that such had occurred, but justified it on the basis of the mother merely controlling the child. A note on 17 June 2018 recorded that the applicant’s mother had smacked the child, [Y], on his posterior, for which the grandmother was chastised by a supervisor. 

4. The applicant, again, sought to justify such behaviour on the basis that the child, [Y], was misbehaving. The notes from the contact centre indicate not only a lack of control on the part of the maternal grandmother, but also the lack of insight and understanding on the part of the mother as to the disciplining of children. 

First Grandmother Incident

1. Documents subpoenaed from the Queensland Police Service recorded that on 23 November 2018 there was a domestic violence incident involving the applicant and her maternal grandmother.  The documents appear relevantly at pages 346-348 of exhibit 2.  In relation to that complaint of violence against the applicant, the applicant admitted that she had punched her grandmother on a number of occasions.  She admitted that her behaviour on that occasion indicated poor impulse control on her behalf.  However, the applicant sought to justify her behaviour because her grandmother had been, quote, “Doing my head in all day.”  How the applicant could seek to justify such behaviour on the basis of such alleged dispute, is beyond the Court’s comprehension.

Second Grandmother Incident

1. Documentation subpoenaed from Queensland Police Service as appears at pages 304-306 of exhibit 2 related to an incident which occurred on 9 December 2018.  On that day, police attended at the applicant’s grandmother’s home, noting that the grandmother was 77 years of age and required a walker and electric wheelchair for mobility.  It was alleged that an argument had started between the applicant and her grandmother over the applicant wanting to get another cat, which request had been refused by her grandmother with whom the applicant was then living.  It was asserted that the applicant had then demanded her rent money back, and had become aggressive toward her grandmother, throwing her mobility walker over the stairs and kicking her in the ankle. 

2. During cross-examination, the applicant admitted that she had roughly thrown the walker.  She also admitted that she had said to her grandmother, when referring to her grandmother’s legs, “See these things, they are legs, they are for walking.”  In cross-examination the applicant, whilst making that admission, nevertheless sought to excuse her behaviour on the basis that she was angry because her mother was, “kicking her out” of the home. She admitted, under questioning by counsel for the ICL, that her behaviour on that day constituted poor impulse control on her behalf. All that occurred in circumstances where, after the first grandmother incident, a protection order in favour of the applicant’s grandmother dated 27 November 2018 had been put in place. 

Third Grandmother Incident

1. Documentation subpoenaed from the Queensland Police Service referred to an intervention by police on 9 January 2019.  On that day it was recorded in documents which appear at pages 351-353 inclusive of exhibit 2 that the applicant had snatched a purse out of her grandmother’s hands, and that when the applicant had been asked to return it, the applicant had then punched her grandmother with a closed fist.  In cross-examination, the applicant told a different version of events.  She said that she had a hammer in her hand and that she must have thrown it, and that that was what had hit her grandmother in the head.

Incident Involving Uncle

1. Police were called to the applicant’s uncle’s residence on … 2018.  It recorded that an incident had occurred between the applicant and her uncle at her grandmother’s home. The applicant admitted that that incident occurred, in what she described as unsettling circumstances, after the end of her son [Z]’s birthday party, but whilst people were still in attendance after that party.  The occurrence of that incident is, in some respects, noteworthy, because of the rapidity with which it appeared to have occurred. It is suggestive of a lack of control on the part of the mother, and is consistent with the diagnosis of the mother’s psychiatric condition, which will be referred to later.

Second Incident Involving Uncle

1. The documents appearing at pages 364-366 inclusive of exhibit 2 of the subpoenaed bundle indicate that an incident occurred on 9 January 2019 which involved a fight between the applicant and her uncle.  Of relevance is the fact that such incident occurred on the same day as the earlier incident referred to above, which had occurred between the applicant and her grandmother.

2. On the subject occasion, the applicant stated that her uncle had grabbed her by the throat and punched her several times in the head.  She also said that her husband had been strangling her, and that she may have lost consciousness.  During the course of the melee between the uncle and the applicant, it would appear that the child, [Z], was in the vicinity of the scuffle when he was pushed down a set of stairs. By his close proximity to the melee, he was no doubt subjected to family violence.

3. When questioned by counsel about that incident, the applicant seemed surprised that she was being asked questions which involved an injury to [Z], saying words to the effect that such incident had nothing to do with either of her daughter or her son the subject of the parenting application, her asking why was she being troubled to justify her behaviour in that regard. Such extraordinary lack of insight on the part of the mother as to the reasons for her being asked about her behaviour on that occasion, and the possibility of such behaviour in the future impacting upon her other children, the subject of these proceedings, is obvious.

Emergency Examination of Applicant Mother

1. Pages 376-377 of exhibit 2 record an incident which occurred on 19 March 2018 whereby the applicant was located at the Suburb D Railway Station, threatening suicide by means of self-stabbing, and hitting her head on an advertising board.  The stated reason for the applicant’s behaviour was that she was having custody issues involving her four-year-old boy, born of the union of herself and a person other than the respondent to these proceedings.  The applicant in cross-examination admitted to such behaviour.

Taxi Driver Threats

1. Page 394 of exhibit 2 is a Queensland Police Service record of the applicant having caused a disturbance at a taxi rank on 1 November 2018.  A complaint had been made by a taxi driver about the applicant’s behaviour.  The applicant admitted such behaviour, which included yelling and screaming and threatening to kill the taxi driver.

Child Safety Intervention

1. At pages 470-472 inclusive of exhibit 2 are documents which relate to a child safety interview conducted with the applicant on 27 August 2018.  The subject matter of the interview involved, in part, the applicant’s involvement with a man named Mr E, who the applicant admitted was widely considered to be a paedophile.  The context in which the applicant’s involvement with such person was raised was the possibility of that person coming into contact with the child, [Z], in circumstances where [Z]’s welfare would be put at risk.

2. As to that individual, the applicant stated that she was engaged to marry him and had been so engaged for in excess of six months.  It transpired that such person had been on remand in prison until the day before trial, when he had been released.  The evidence of the mother was that she had stayed with him the previous night. She did not accept that he was a paedophile, though she conceded that Child Safety would not let her move in to live with him because of child safety concerns, surrounding her young child, due to the risk of paedophile influence.  The mother’s evidence concerning the Department of Child Safety was that she admitted that Child Safety considered that her young child was in need of protection, yet she was actively promoting an ongoing relationship with the person who Child Safety officers viewed as being a danger to her young child. Again, such lack of insight on the part of the applicant is astounding.

3. Under the heading “Child Safety Recommendation”, at page 493 of exhibit 2, is a record that Child Safety considered that the applicant’s youngest child was in need of protection as a result of the behaviour of his mother, the applicant.  Again, when asked about the involvement of her fiancé Mr E, the applicant stated that it was her intention to live with him and that she did not believe any of the allegations about him being a paedophile. 

4. The applicant, during the course of questioning by the Court by way of introduction before cross-examination, referred to her mental health as being one where she suffered from a bi-polar condition which in the past had resulted in her being prescribed medication by one Dr F. She stated that sometimes her behaviour involved her “going off” which suggested her losing control. That self-assessment was supported by the contents of a report of a psychiatrist named Dr B dated 16 January 2018. It was recorded on page 5 of such report that the applicant had a history of a seizure disorder with onset at about age 5. 

5. There was also a history of psychiatric diagnosis at the time of her primary school years which had resulted in her being prescribed a psychotropic drug said to be quetiapine, or Seroquel. It was recorded that, though the applicant had been trialled on other psychotropic drugs, such treatment had been ineffective and had caused unwanted effects. Dr B at page 6 of his report recorded that, though there was no sufficient evidence to suggest bi-polar disorder, there was congenital intellectual impairment, and an immature personality structure in the applicant. 

6. At page 6 of his report, Dr B stated that the applicant did not present with any treatable psychological or psychiatric condition.  On page 9 of the report under the heading “Prognosis” it was said by Dr B as follows:     

   I do not believe the prospects of psychological treatment or psycho-education and parenting training are good, in terms of producing long-term sustained improvements in parenting functioning or function in the day-to-day activities of normal housekeeping or independent living.  This is because: [1] the mother has not shown a capacity to be motivated to change, [2] the mother has shown a severe incapacity for new learning [the nature and duration of her struggle to “fit into society.”]  The prognosis needs to be reviewed every two-three years.

7. When cross-examined by counsel for the ICL, the applicant finally conceded that if the Court was to order that the only contact that she was to have with the two children the subject of the proceedings was to be at a contact centre, then she would attend such contact, albeit reluctantly.  She referred to difficulties with paying for any such contact visits, the orders in the past requiring her to pay half of the cost of any such visits.  There was questioning about the applicant’s ability to attend at a contact centre in either Suburb G or Suburb H. The applicant mother has conceded that she would be able to easily catch a train from her current residential address to Suburb G for the purpose of attending any time with the children.

1. When questioned about her understanding as to the possible requirement for supervision, the mother was unable to give any answer beyond her stating that it wasn’t fair that she couldn’t act like a true mother and attend to the needs of her children on an overnight basis.  Again, the lack of insight on the part of the applicant is obvious in relation to her answers on such issues. 

2. The father was called for cross-examination. He admitted to having a criminal past.  That criminal history is recorded on pages 2 and 3 of exhibit 1. 

3. The recorded offences date from as far back as 2010. The offences are in the nature of stealing and being in possession of utensils used in connection with the use of drugs. The father stated that he had not used any drugs since his last drug conviction in or about January 2017. He indicated that he was prepared to undergo hair follicle drug testing to establish his lack of use of drugs and the ICL supported that position, as did the applicant mother. 

4. He gave evidence that the children were in a good state of health and were each doing well at school.  He stated that the female child was doing extremely well and that the younger male child, who had a learning difficulty, was being well supported by attending extra-educational assistance classes at “…” at the local school.  He stated that he regularly took the children to a community health centre near his home. 

5. He stated that he is drug free, that there was an incident drawn to his attention by counsel for the ICL relating to his making, and subsequently withdrawing, a complaint that he had been the subject of an armed robbery on 30 November 2018.  The Queensland Police Service documents produced on subpoena, which appear at pages 383 and at 385 of exhibit 2, record that the respondent made a complaint to police that he had been attacked or threatened with a knife by someone who had pulled up to offer him a lift when he was walking along a road near his home. 

6. It was suggested to the applicant by counsel that his act of entering the motor vehicle when asked if he wanted a lift by allegedly unknown passengers was implausible, and that, indeed, the father had been involved in some sort of drug-related activity.  There is insufficient evidence to make a finding on that point, one way or the other.  The requirement for ongoing hair follicle testing is something that can be addressed in that regard in due course. 

7. The family report writer, one Ms A, was called to give evidence.  She had prepared a report, dated 13 March 2018. Subsequently, she had been provided with the documentation contained in exhibits 1 and 2. Paragraph 94 of her report recommended that contact between the children and their mother occur at a contact centre on a fortnightly basis.  Such proposal was reaffirmed by Ms A in cross-examination, her having had the benefit of reading the subpoenaed material. 

8. She was also fortified in her previous opinion that despite all of the issues, including the high risk of harm to the children whilst in their mother’s care, the children, nevertheless, should have the opportunity to have ongoing contact with their mother and their young stepbrother.  She stated that the mother had a lack of insight as to the real issues of importance relating to the welfare of the two children the subject of the proceedings. 

9. She was of the firm view that supervision was required in relation to any time to be spent between the mother and the two children.  As to the involvement of other family members, Ms A was only prepared to countenance the commencement of any such contact after a “substantial period of time”, and only in circumstances where the mother had demonstrated an ability to facilitate enjoyable contact in a safe environment with the children. Only then would such contact be appropriate. 

10. Although there was an indefinite nature to Ms A’s opinion in that regard, there is always the ability on the part of each of the parties to seek to vary a Court order well into the future.  It is not a case where some provision ought to be made for future contact by other family members of the applicant at any particular future time or, indeed, for a review of any indefinite supervision as countenanced by May J in Moose v Moose (2008) FLC 93-375 at [10].

11. Ms A pointed to all of the evidence before her and concluded that there was an ongoing pattern of impaired judgment on the part of the mother in a many respects.  That is a view with which the Court agrees. 

12. Section 60CA of the Family Law Act requires that the best interests of the children is the paramount consideration when making any parenting order. Such is at the forefront of this Court’s mind when doing so. Section 60B of the FLA sets out the objects of part VII of the FLA, being to ensure that the best interests of the children were met. Of paramount importance in that regard is the need to protect children from physical or psychological harm, being subjected to, or exposed to, abuse, neglect or family violence, along with the other matters referred to in section 60B(1) of the Act. Those, of course, are to be looked at in the context of those matters as set out in section 60B(2) of the Act. In this case, section 60CC(2) is as follows:

    60CC How a Court Determines what is in a child’s best interests

    Determining child’s best interests

    (1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2) and (3).

    Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.

    Primary considerations

    (2) The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note: Making these considerations the primary ones is consistent with the object of this Part set out in paragraphs 60B(1)(a) and (b).

13. The prime consideration set out in paragraph (2)(b) of section 60CC is the need to protect the child or children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In this case, based upon the facts, matters and circumstances as set out above, there are an abundance of examples of the likely risks to the welfare and wellbeing of the children should they be exposed to contact with their mother in other than a supervised context. The examples referred to above provide clear evidence of how the mother not only manages to find herself in situations where violence perpetuates, but also how the applicant is herself violent to those around her.

14. The applicant is incapable of understanding how, in relation to the incident which involved her young child being pushed down a flight of stairs, her own behaviour was instrumental to such harm being suffered by the child. In those circumstances, the Court is not required to enter into an examination as to why the presumption of equal shared parental responsibility ought to be considered. It is so obvious in this case that the risk of harm to the children is so high that equal shared parental responsibility, as countenanced by section 61DA of the FLA, is inapt.

15. The father has demonstrated that he is able to care for the children and ensure that they are having their needs, both material and educational, met.  He has had their sole care since July 2018.  His experience today at Court will bring home to him, front and centre, the need for him to stay drug-free if he wants to continue to have the joy of the two children living with him.

    ORDERS DELIVERED

16. The Court has had regard to M v M (1988) 166 CLR 69 at 78, W v W (2005) FLC 93-235, and Napier v Hepburn (2006) FLC 93-30C on the question of its assessment of the risks to the children having other than supervised contact with the mother. The Court is of a view that to do otherwise would create “an unacceptable risk” in all of the circumstances.

17. For those reasons, the Court makes orders in accordance with the draft orders handed up to the Court by counsel for the ICL, both in relation to parental responsibility, as well as to other parenting orders, including time to be spent by the children with the mother.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Egan.

Date: 15 March 2019