EAMES & EAMES

[2015] FCCA 350

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAMES & EAMES [2015] FCCA 350

Catchwords:
FAMILY LAW – Interim orders – possibility of unacceptable risk – suspension of father’s time with the child.

Legislation:  

Family Law Act 1975

Goode & Goode [2007] FamCA 315

Applicant: MS EAMES

Respondent: MR EAMES

File Number: MLC 4509 of 2013

Judgment of: Judge Jones

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Melbourne

Delivered on: 6 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Forster

Solicitors for the Applicant: Forster & Associates

Counsel for the Respondent: Self represented

Counsel for the Independent Children’s Lawyer: Ms Lonergan

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. Until further order the father’s time with the child X born (omitted) 2004 (“the child”)  is suspended.

2. Until further order the father is hereby restrained by injucntion from communicating with X and from being within 200 metres of the presence or hearing of the child.

3. Until further order the father is restrained by injunction from being within 200 metres of the mother’s residence, workplace or her presence or hearing.

4. The mother, her servants and agents be restrained by injunction from discussing these proceedings with the children and making any references to the circumstances which have led to this order.

5. The Independent Children’s Lawyer is requested to explain these orders to X.

6. A copy of the report by Ms R dated 30 January 2015 is released this day to:

   (a)the parties and their legal representatives;

   (b)any Independent Children’s Lawyer in the proceedings;

7. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

   (e)AND unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person

8. Any party requiring the Family Consultant for cross-examination shall provide at least 7 days’ notice in writing to the Family Consultant and each other party to the proceedings AND that in the event that notice is not given in accordance with this order and the Family Report has been released at least 7 days before the hearing, the report be admitted into evidence without the Family Consultant being available to give evidence or for cross-examination, unless otherwise ordered by the trial Judge.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 6 herein, they shall write to the Chambers of Judge Jones seeking that the matter be listed on short notice for their objection to be heard.

D.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 4509 of 2013

MS EAMES

Applicant

And

MR EAMES

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an interim decision.  These are interim proceedings.  Pursuant to the Full Court decision in Goode & Goode [2007] FamCA 315, I cannot make any findings. There are allegations and the father has, in his submissions today, spent some time referring to allegations which have not been tested, and I agree with that because we are yet to have a final hearing. The final hearing is in a very short period of time.

2. The proceedings are in relation to two children of the marriage:  Y, born (omitted) 2001 (she is now 14 years) and X, born (omitted) 2004, and he is now 10 years.  The parties, I should say, separated in March 2013.

3. Presently the father is spending supervised time with X, in the sense that the paternal grandfather is to be in substantial attendance at all times, and he gave an undertaking to the Court to that effect.  Y spends time with the father as she wishes.  The father spends time with X daytimes each weekend and after school.

4. These orders for supervision were made on 6 March 2014 following an interim hearing, which came about particularly because of an SMS text dated 14 February 2014, sent by the father to the mother’s sister.  That was set out in exhibit E1 to the mother’s affidavit filed on 3 March 2014.  In the context of a series of complaints made by the father regarding the mother and the effect of her actions on the family, he referred to:

   “My heart is really saddened by the events of yesterday with regard to the mentally unstable father who killed his son using a cricket bat.”

5. He then set out his complaints and then said, referring to himself:

   “A father emotionally damaged and himself in a treatment program over the loss of his children.”

6. Now, I should say that shortly after that text was sent and prior to the Court return date on 6 March 2014, the Court received the psychiatric assessment by Dr T.  His diagnosis was that the father suffered adjustment disorder and anxiety, that he was narcissistic, obsessional and had controlling personality traits.

7. At the Court return date, I explained to the father – I made it abundantly clear to the father that such communications or statements are not only unacceptable but raise serious concerns regarding the risk of children in his care.

8. In the second Family Report of Ms R dated 30 January 2015.  She referred to Mr Eames’ comment regarding this SMS text message and said at paragraph 18:

   “He detailed the background to his SMS text to the mother’s sisters, which caused consternation to the two others, and worrying explained that it was read out of context and therefore assumed a different meaning.  He denied that it was intended to cause fear and anxiety and said that he was “disgusted in the system” that reacted by limiting his time with his son.”

9. At paragraph 37 Ms R set out what I believe is an appropriate analysis, on which I make no finding, of the way in which such a text might be construed.  She said this:

   “Ms Eames has been concerned for the children’s welfare for some time and Mr Eames' SMS to her sister only served to heighten and confirm her fears that he does pose a risk to the children.  Mr Eames' SMS was, at the very least, a badly worded attempt to express himself, which is unlikely, given that he is a clever and articulate man, or an example of his lack of insight that he could not foresee how his remarks could be read in the circumstances, or that he knowingly crafted the message to create alarm.  In the worst case scenario, it may have been a code for what he was thinking or planning to execute, as Ms Eames feared or fears.”

10. Now, of course, the Court cannot make any findings.  Nevertheless, a Court, when it comes to the question of the safety of children, always at interim proceedings adopts a cautious approach.  Mr Eames has referred to his meaningful relationship with his son, and there is no doubt that in the report of Ms R he does have a meaningful relationship with his son.  His son does enjoy his time with him.  And that is a primary consideration of the Court when it considers the best interests of the children.

11. However, the other consideration which surpasses that primary consideration is the safety of the children, and I repeat, because I do not want Mr Eames to be under any delusion or mistake that I am making any findings.  I cannot.  The evidence is yet to be tested, and it will be tested very shortly.

12. Now, this mention was listed today for the release of a Family Report.  In the usual circumstances, I adopt the practice of sending it by post to the parties.  Mr Eames has rightly said that there is material in that Report which suggests that the mother is discussing the proceedings and her concerns with X, and that must cease immediately, and I will make an order to that effect, and her solicitor, who is sitting here, will convey that to her immediately.  And that is, of course, something I need to deal with at final hearing.

13. However, the particular paragraph that concerned me and led me to depart from my usual practice and to have this listed as a mention is a paragraph where the Family Consultant, Ms R, reports on her consultation with Y’s psychologist, Ms B, who works from the (omitted) Hospital CAMHS.  The paragraph is paragraph 22, and I am now quoting:

    “Ms B reports that Mr Eames contacted her to inquire about Y, but when she was unable to provide him with the information, Mr Eames became irate and proceeded in an angry tirade about the Court system, Ms Eames and her solicitor.  He made references to the Luke Batty incident, noting that is how fathers get destroyed in the system.”

14. The father in his submissions denies that he got angry; that he went into a tirade; and he denies that he made a comment or reference to the Luke Batty incident.  Of course, the father is entitled to do that, because I asked for submissions, but the evidence today cannot be tested, so I cannot make any finding.  However, if this is a factual – if this is correct, then there is clearly a very serious risk to X, because this is the second time that the Luke Batty tragedy has been raised.

15. Now, I cannot make a finding, but as I indicated earlier on, the risk is high that this was a statement that was made because, firstly, it is unlikely that either the psychologist, who is a qualified professional working in CAMHS, mistook what was said by the father, or, on the other hand, the Family Consultant mistook what was said to her.

16. Next, this is the second time the father has resorted when stressed or angry with a reference to the serious violent killing of a child by his father.  Third, I have to say that the content of the report escalates, in my view, the risk, because if the report of what the father said is true, it indicates a certain sympathy by the father for the father of Luke Batty, who simply was a killer, nothing else. 

17. Today, the father has made long submissions, as he is entitled to do.  He has indicated his dissatisfaction with what has occurred, but he has accepted it.  He has made a lot of statements about the mother, but I am unable to deal with that today.  But he did say, and I made a note, “The system let Luke Batty happen and the system has put me in this place.” 

18. The Independent Children’s Lawyer, who does not support the proposed orders that I indicated I was considering, but rather the continuation of the current arrangements, did indicate that there were matters that the father said today which were of some concern.  And I have indicated to the mother’s solicitor that I have concerns from the report of Ms R that the mother is engaging and involving the child, X, in what is happening, and she is to immediately cease.  And, of course, if on hearing I make findings about that, that will have consequences in relation to the time X spends with his mother. 

19. However, I have to say that in the circumstances – and I am referring to the first SMS text, this most recent report of what was said by Mr Eames to Ms B, a psychologist – I am satisfied to the extent that I can be in an interim hearing without being able to make any findings that there is an unacceptable risk to X’s safety being in his father’s care, even where his paternal grandfather is in substantial attendance. 

20. I might say that the anniversary of the tragic incident is next week and it will be in the front of everyone’s mind.  It is an obligation on this Court, on judicial officers, to take every step to be cautious and avoid any risks.  I emphasise to Mr Eames this is not a finding, and after final hearing, findings may change.  I may make findings that are to the other effect, but in the meantime, I must be cautious.  I am therefore satisfied that I should make the orders that I indicated to the parties I was considering I should make.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date:  20 February 2015