Enslow & Dowell
[2021] FamCA 345
•28 May 2021
FAMILY COURT OF AUSTRALIA
Enslow & Dowell [2021] FamCA 345
File number(s): PAC 4701 of 2020 Judgment of: FOSTER J Date of judgment: 28 May 2021 Catchwords: FAMILY LAW – PARENTING – where contested interim parenting proceedings – where father seeks order that children live with him and have no time with the mother – where significant issues of family violence perpetrated by the father – where current ADVO final orders – where father convicted of malicious damage – where father’s assault on one of the children and breach of the ADVO order found proved and father placed on conditional release order for 18 months – where presumption of equal shared parental responsibility displaced – where considerations of risk by reason of the father’s lack of emotional regulation – where ICL supports supervised time – where ICL’s position adopted by the mother – where father’s proposal reveals little insight into the consequences for the mother and children of his conduct – where orders made in best interests of children for them to live with mother and have supervised time with the father. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZL Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Number of paragraphs: 77 Date of hearing: 26 April 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: McAuley Hawach Lawyers Respondent – self‑represented litigant: The Respondent mother attended in person Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 4701 of 2020 BETWEEN: MR ENSLOW
ApplicantAND: MS DOWELL
RespondentMR NAIDOVSKI
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS, PENDING FURTHER ORDER:
1.That the children X and Y born … 2013 and Z born … 2017 live with the mother.
2.That the children spend time with the father supervised by D supervision service (or such other community based supervision service agreed to by the mother and father or in default of agreement nominated by the Independent Childrens Lawyer) for a period of two hours, or such other period as the parties may agree in writing, such writing to include SMS and or email communication, each alternate week on days and times as made available by the service and that the father be responsible for costs of such supervision.
3.That the mother and father at all times:
(i)be courteous and respectful to the other and their family members;
(ii)not denigrate the other or their family members;
(iii)be restrained from using profane language and making derogatory comments about the other or their family members;
to or in the presence or hearing of the children and any other third parties and shall remove the children from the presence of any person who is denigrating the other and the other’s family in the presence or hearing of the children.
4.That the Independent Children’s Lawyer have leave to relist the proceedings on short notice in appropriate circumstances by application to the Court in Chambers.
5.That, otherwise, all outstanding interim applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Enslow & Dowell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 8 September 2020 the applicant father filed an Initiating Application in this Court seeking orders both as to parenting and property.
The father as to parenting, in summary, sought the following final orders:
(a)that the father and mother have equal shared parental responsibility for the three children of the parties’ relationship: X presently aged seven, Y presently aged seven and Z presently aged three;
(b)that the children live with the mother;
(c)that the children spend defined time with the father comprising substantial and significant time including midweek, on alternate weekends and half school holidays, in addition to other times on special occasions.
Otherwise, as to property, the father sought orders for the sale of the parties’ properties at Suburb B, New South Wales and after discharge of secured mortgages and repayment of an alleged debt to the paternal grandparents of $645,000, that the net proceeds of sale be then paid to the father.
The father, otherwise, sought interim orders as to parenting in the same terms as final orders sought by him.
The mother, in her Response to the father’s Initiating Application, sought orders both as to parenting and property. Relevantly, as to parenting, the mother sought, in summary, orders:
(a)that the mother have sole parental responsibility for the said children;
(b)that the children live with the mother;
(c)that the mother have leave to amend the orders sough after the father undertakes and completes a course relevant to perpetrators of family violence.
As to property, the mother relevantly sought an order that the assets of the parties be divided as to 70 per cent to the mother and 30 per cent to the father.
The mother also sought interim orders as to parenting in the same terms as final orders sought by her.
Context
The proceedings were before a registrar on 14 January 2021. It was noted that a Children and Parenting Issues Memorandum had been released to the parties and proceedings were adjourned to the judicial interim hearing list on 18 January 2021.
On 18 January 2021 both parties were represented by counsel and the Independent Children’s Lawyer (“ICL”), who had been appointed, was in attendance. The parties were directed to file any short updating affidavit by no later than 10 March 2021 and proceedings were adjourned for interim hearing to 15 March 2021which was vacated and the matter was relisted to 16 March 2021. On that day, on application of all parties, proceedings were adjourned for interim hearing to 2.15 pm on 12 April 2021.
On 12 April 2021 the father filed an Application in a Case amending the interim parenting orders sought by him. Interim parenting orders sought by him were, in summary:
(a)that pending further order the children live with the father;
(b)that personal service of the Application in a Case be dispensed with.
It appears that the father’s Application in a Case was precipitated by the mother’s non‑appearance on 12 April 2021, with the Court being informed by her solicitor that no further instructions were able to be obtained from the mother and that her circumstances were unknown to the solicitor. At interim hearing the father persisted with his application that the children live with him.
On 12 April 2021 the Court was informed that the family had been the subject of notifications of suspected abuse of the children to the Department of Communities and Justice, and to facilitate departmental documents being available an order was made under s 69ZW(1) of the Family Law Act 1975 (Cth) (“the Act”) for the Department to produce documents to the Court. Proceedings were adjourned for interim hearing to 26 April 2021.
The interim hearing proceeded on 26 April 2021 and judgment was reserved.
By consent an order was made on 26 April 2021 for the appointment of Dr F, clinical psychologist, as a single expert pursuant to Division 15 of the Family Law Rules 2004 to provide an expert report to the Court.
Documents relied on:
The father relied upon the following documents:
(a)his affidavit filed 11 January 2021;
(b)his updating affidavit filed 10 March 2021;
(c)his further affidavit filed 9 April 2021;
(d)the affidavit of the paternal grandfather filed 9 April 2021;
(e)the affidavit of the paternal grandmother filed 9 April 2021.
The mother relied upon her affidavit filed 19 October 2020.
The Court was, otherwise, assisted by the Child Responsive Program Memorandum dated 13 January 2021: Exh “C”.
Background
The parties commenced cohabitation in about early 2013. They married in 2018 and later separated on 5 August 2020. The three children, the subject of the present application, are children of that relationship.
The child X presently attends year two at the local primary school. The child Y, who suffers from non-verbal autism, attends another nearby local primary school that has appropriate support services and the child Z attends day care.
Children and Parenting Assessment Report
The parties and the child X were interviewed by the family consultant by video link on 15 December 2020 and 12 January 2021 respectively. The key issues for determination were identified by the family consultant as:
•the most appropriate arrangements for the children to spend time with the father, if at all;
•allegations regarding physical abuse of the mother by the father;
•allegations regarding the father’s physical punishment of the children and X in particular;
•Y’s disability and ongoing needs.
The family consultant reported that the child X has been attending on a psychologist with a suggestion that X might have mild autism or attention deficit hyperactivity disorder. The child on interview reported that she loves the father but does not like it when he is mean. She describes circumstances where the father was screaming in her face when he is “been angry at me”. She reported that on her birthday in 2020 the father smashed her cheek into the tiles. The child suffered bruising to her arms and her face was swollen as a consequence. The child reported an incident where the father broke glass and she got some of the glass in her foot. In an incident in May 2020 the child suffered bruises to her arms when the father threw the child into her room. The bruising was reported by the child’s after school care to the Department of Communities and Justice.
The mother reported to the family consultant that there was then in force an Apprehended Domestic Violence Order (“ADVO”) for the protection of herself and the children, arising from events in August 2020 when the father smashed a vase in the presence of the children, kicking the glass towards the mother and the child X as he was leaving the home and broke other items in the house.
The father acknowledged there were arguments between himself and the mother with a good deal of yelling and screaming and recognised that this may have been frightening to the children.
The mother made further complaint as to the father’s lack of emotional regulation. She reported to the family consultant that the father had on other occasions smashed mirrors and a photo frame, smashed a child’s chair to the extent that it was no longer recognisable as a chair. Further, she complained that the father was financially controlling and interrogated her as to why she spent money. The father would on occasions not speak to her and the children for weeks and refused to attend marriage counselling.
Exhibit “D” comprises the transcript of proceedings before the Local Court in February 2021. On that date proceedings related to the application for a final ADVO order arising from the incidents in August 2020, the charge of malicious damage to property, the charge of common assault in relation to the child X, the charge of stalk/intimidate the mother and breach of the interim ADVO order.
The father was convicted of malicious damage and fined $800.00. The Court found the charges of assault on the child and breach of the ADVO proved. In lieu of a sentence of imprisonment or fine under the provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court did not proceed to record a conviction but placed the father on a conditional release order for a period of 18 months and a final ADVO order was made for a period of two years for the protection of the mother and children.
The mother informed the family consultant that she had been attending a psychologist since June 2020 as a consequence of circumstances within the home and that she is on medication to assist managing her anxiety. The mother asserted that the father needs assistance in managing his emotions and his irrational thinking.
Notwithstanding his later conviction for assaulting the child, the father denied to the family consultant the circumstances alleged in relation to the child X.
The mother further reported to the family consultant that there had been numerous reports to the Department of Communities and Justice by mandatory reporters regarding the father’s anger outbursts with the children. The mother expressed her concerns about the father having unsupervised time with the children and was critical of the father’s attitude towards the child Y.
In evaluation, the family consultant expressed the view that the allegations made regarding physical punishment of the children, and X in particular, are serious and may require further understanding before unsupervised time is considered. As to further directions, the family consultant, inter alia, recommended that should the Court hold concerns about perpetration of family violence by the father he may be assisted by attendance at a men’s behaviour change program.
The Department of Communities and Justice
In response to an order made under s 69ZW of the Act, the Department produced relevant documents. In the period from 4 July 2020 to 29 March 2021 a number of reports were received by the Department. The reports received by the Department variously comprised an assertion that the father had choked the child X when he was angry, the mother’s disclosure of ongoing domestic violence (physical, verbal and mental) to her and the children and a report as to the children’s ongoing fear of the father.
In March 2021 the Department received a concerning report that subsequent to the father’s conviction at Local Court he had engaged persons to harm the mother with the report also making references to a report in November 2020 that the child X had reported the father shaking his penis at her in the shower and had recorded her naked. The report also asserted that the mother had been subject of stalking by two unnamed males who had forced the mother to withdraw money from the bank account so that they did not rape and kill her. These men, it was reported, also threatened to kill the children if the mother did not give them money.
The Department reported that the mother was continuing to receive support from G organisation but due to her experience of violence and control resulting in her feeling anxious, paranoid and fearful every day she was struggling to feel safe in her home.
The ICL
The ICL provided to the Court at hearing a minute of proposed interim orders supported by the ICL.
The ICL was of the view that it was appropriate that there be professional supervision.
The ICL relevantly proposed orders that, in summary, provided:
(a)that the children live with the mother;
(b)that the children spend time with the father supervised by D Services supervision service for a period of no less than two hours each week on days and times as available by the service and that the father be responsible for costs of such supervision;
(c)that the parties at all times:
(i)be courteous and respectful to the other and their family members;
(ii)not denigrate the other or their family members;
(iii)be restrained from using profane language and making derogatory comments about the other or their family members;
to or in the presence or hearing of the children and any other third parties and shall remove the children from the presence of any person who is denigrating the other and the other’s family in the presence or hearing of the children.
The mother was supportive of the ICL’s proposals.
The Father’s Evidence
The father relied upon his affidavits filed 11 January 2021 and 9 April 2021.
As to the allegations relating to his violent and other aberrant conduct, the father disputes the events alleged to have occurred in August 2020 and recorded that he was contesting the ADVO proceedings. Otherwise, he denied violent conduct towards the mother and the children as alleged by the mother and simply concedes that “I raised my voice at the children when they were misbehaving”.
The father in his affidavit goes into significant evidence endeavouring to place a positive view on his role within the household, both historically and prior to separation.
However, his evidence by reason of the offence subsequent to his affidavit, clearly lacks any reflective capacity as to the circumstances of the children and their needs and the impact of his behaviour which has been found proved by another court on both the mother and the children.
In his more recent affidavit filed 10 March 2021 the husband proposed that he have supervised time with the children each Wednesday after school from 3.00 pm to 6.30 pm and each alternate Saturday from 10.00 am to 4.00 pm and electronic communication with the children. He proposed that the paternal grandparents supervise his time with the children.
Both the paternal grandfather and paternal grandmother swore affidavits in support of the father and their willingness to provide supervision.
On hearing, the father submitted that the children should live with him and spend no time with the mother. The orders sought by him are illustrative of his lack of reflective capacity as to the impact of his behaviour on the children and the mother and the need to move carefully in relation to the children’s relationship with him so that they and the mother are reassured that there will be repetition of his previous behaviour.
The mother’s evidence
The mother relied upon her affidavit filed 19 October 2020.
The mother provides details as to the incidents that took place at the matrimonial home on 5 August 2020. As a consequence of his conduct, the father was convicted of assaulting his child X in later proceedings as referred to above. Otherwise, on that day the father used foul and offensive language to the mother in the presence of the children.
During the course of the incident the mother hid in a bedroom with the child Y and messaged a friend to call the police. A short time later two of the father’s friends arrived at the home and convinced him to leave. The police arrived a short time later.
The mother says that the child X remained crying and was inconsolable, taking a considerable period of time for the mother to calm down. It was not until 6 September 2020 that the police were able to make contact with the father who was not at his parents’ home and had not attended as requested at the police station for interview. After the incident, the domestic violence advocate arranged for the locks to be changed at the matrimonial home, sensor lights to be installed and for the reactivation of the security camera system.
The mother provides a detailed history of the father’s aberrant behaviour, in particular, relating to the child X, during 2020.
The child X has a history of anxiety and subsequent to the incident of August 2020 she had become aggressive and impatient and had commenced bedwetting. The child was under the care of a treating child psychologist who had recommended a review by a psychiatrist.
The children had not seen the father since August 2020.
Interim Parenting
In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Since Goode (supra), s 69ZL of the Act has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order.
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)],
(b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]. In these proceedings and by reason of the father’s conviction and, otherwise, the Court is well satisfied that the father has engaged in abuse of a child and family violence.
The presumption is rebutted.
Best Interests
The Primary Considerations: s 60CC(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.
The present application must focus on the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This consideration is in itself determinative of the present application on an interim basis, such that it calls for orders protective of the children as contended for by the ICL and supported by the mother.
The circumstances discussed above raise significant concerns as to the father’s emotional regulation and his capacity to properly reflect on the impact of his conduct on the children and the mother. Those concerns appropriately require protective orders on an interim basis.
Otherwise, the Court is to consider the benefit to the children of having a meaningful relationship with both of their parents. These children have not spent time with the father since August 2020 for the reasons discussed above.
The mother represents to the children their present primary attachment and their primary carer. A continuation of her primary role for these children is important under the present circumstances and would represent a meaningful relationship with the mother for them.
The children’s relationship with the father is fraught and undermined by his conduct. The child X has been the subject of an assault by him and is having psychological intervention for anxiety. The mother asserts that the father’s relationship with the child Y is difficult, with the father not accepting of the child’s disabilities. The children’s relationship with the father requires sensitive reintroduction moving forward. The children need to be reassured that the father’s conduct will not be repeated and that his relationship with them is not held ransom to his lack of emotional control.
In Mazorski v Albright [2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
As to the father, his relationship with the children in a supervised capacity, as recommended by the ICL, is clearly indicated as a protective measure for the children.
The Additional Considerations: s 60CC(3)
Whilst the Court is to consider the additional considerations in the context of this application, the need to protect the children is overwhelmingly the primary issue.
The child X expressed to her psychologist some wish for a relationship with her father notwithstanding his aberrant conduct towards her. Yet her wishes need to be seen in the context of her ongoing anxiety by reason of her father’s conduct. Such wishes should be afforded little weight.
The mother’s capacity as a parent remains subject to her anxiety and fear arising from the father’s conduct. It is agreed that the children will remain in her primary care. The father’s capacity is overshadowed by his lack of emotional regulation and domestic violence to the mother and the children. Both parents will be subject to a report from the appointed single expert.
The father does not seek orders for equal time or substantial and significant time. Clearly, such orders in the context of this matter are not in the children’s best interests.
The ICL properly contended that the father’s time be supervised in the community.
Such orders are in the best interests of the children. Orders will be made accordingly.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 28 May 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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