EVERT & PASCAL
[2021] FCCA 496
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EVERT & PASCAL | [2021] FCCA 496 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – review of decision of a Senior Registrar – where the Senior Registrar did not make any orders for time spending between the children and the father - children aged 11 years, 10 years and 8 years – mother’s asserts that the father is presents an unacceptable risk of harm to the children and does not promote any time spending between the father and the children – father denies that he is any risk to the children and wishes to spend five nights each fortnight with the children – father asserts children are at risk of psychological harm if they were to remain in the mother’s primary and have no relationship with him – where there is an Intervention Order naming the mother and the children as protected persons – preliminary assessment of risk – order for supervised time between the children and the father – consideration of section 68Q of Family Law Act 1975 (Cth) to vary Intervention Order. |
| Legislation: Family Law Act 1975 (Cth) ss.4AB, 60CC(2), 68Q |
| Cases cited: Dieter & Dieter [2011] FamCAFC 82 |
| Applicant: | MR EVERT |
| Respondent: | MS PASCAL |
| File Number: | ADC 5265 of 2020 |
| Judgment of: | Judge Kari |
| Hearing date: | 24 February 2021 |
| Date of Last Submission: | 25 February 2021 |
| Delivered at: | Adelaide |
| Delivered on: | 25 February 2021 |
REPRESENTATION
| Counsel for the Applicant Father: | Mr Anderson |
| Solicitors for the Applicant Father: | Belperio Clark |
| Solicitors for the Respondent Mother: | Mr Wadlow of Wadlow Solicitors |
UPON NOTING that in the event that the Orders for the filing of documents for the Callover provided for in these Orders have not been complied with, the Court shall:
(a) Give consideration to vacating the Callover and listing the matter for Mention only;
(b) Give consideration to making an Order:
(i)That the defaulting party pay the costs of the party not in default; and/or
(ii)Consider as to whether costs Orders be made personally against the solicitor for the defaulting party and/or a referral of the solicitor to the South Australian Legal Profession Conduct Commissioner.
THE COURT ORDERS:
That until further order, the children X (born in 2009), Y (born in 2010) and Z (born in 2012) live with the Mother.
That each of the parties do: -
(a) Keep the other informed by SMS Text Message of his/her residential address, email address and mobile telephone number and inform the other of any proposed change thereto at least fourteen (14) days prior to such change occurring;
(b) Keep the other parent informed via email or text message as to all medical issues concerning any of the children and any illness suffered by an of the children;
(c) Be at liberty by operation of this order to consult with and obtain advice from the children’s medical or other treating practitioners;
(d) Forthwith advise the other parent by text message in the event of any illness or accident suffered by any of the said children requiring hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which the child/ren has admitted or treated;
(e) Be at liberty by operation of this order to receive any and all information from any treating medical practitioner, health professional, therapist or counsellor upon whom any child attends from time to time;
(f) Be at liberty to obtain from any school at which any of the children attend from time to time at that parent’s sole expense in all things copies of all school newsletters, school reports, photographs and the like.
That the parties be restrained and an injunction is hereby granted restraining each of them from:-
(a) Discussing these proceedings or any issues in dispute between the parties with the children or in their presence or allowing any person to do so;
(b) Denigrating the other party to the children or in their presence of allowing any other person to do so;
(c) Changing the children’s school or removing the children from his/her extracurricular activities without the written consent of the other party;
(d) Removing the children from the Commonwealth of Australia without an order of this Court.
That until further order the children shall spend time supervised with the father as follows:
(a) Each week on either Saturday or Sunday for a period of four (4) hours;
(b) That the time be supervised by a professional supervisor agreed and jointly instructed by the parties no later than 4.00pm on 3 March 2021 and in default of agreement as ordered by Court upon application of either party;
(c) The father shall pay all costs of supervision;
(d) The parties shall jointly request a report in writing from the Supervisor at the conclusion of each 6 visits;
(e) A copy of the Supervisor’s report is to be filed by the father annexed to an affidavit within 48 hours of receipt.
Pursuant to section 68Q of the Family Law Act 1975 (Cth) there be a declaration that paragraph 8 of the Interim Intervention Order made on 6 January 2021 be varied so as to permit the father attending at B School, Adelaide for the purpose of any parent teacher interviews and/or meetings to which he is invited to attend in writing.
The husband’s application for costs thrown away with respect to the Application for Divorce filed by the mother on 4 November 2020 be reserved generally.
That in the event that any of the children express a desire to communicate with the father the mother shall facilitate the same occurring including but not limited to communication by telephone, email, social media or any other method requested.
That paragraph 4 of the Orders made 7 December 2020 be varied to provide a release date of the report of Ms C to 30 September 2021.
That the Review Application filed on 18 December 2020 be dismissed.
That all interim applications be dismissed.
That the hearing on 22 March 2020 be vacated.
That the proceedings are adjourned to 24 November 2021 at 3.00pm for Callover and possible Trial listing.
That the parties personally attend the Callover AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file principal attend.
That no less than seven (7) days prior to the Callover date the parties shall file and serve:
(a) A brief summary of the issues in dispute, together with a Minute of the specific Orders sought; and
(b) A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.
IT IS FURTHER ORDERED BY CONSENT:
Each the mother and the father do obtain a psychiatric assessment and thereafter file and serve any such report annexed to an Affidavit from the psychiatrist and in that regard:
(a) Each of the parties shall provide to the psychiatrist a copy of all documents filed in these proceedings, Orders made together with a copy of the Child Inclusive Memorandum dated the 22 February 2021 and the information release pursuant to co-location arrangements with South Australia Police dated 18 December 2020;
(b) The letter of instruction to each psychiatrist is to be agreed between the parties;
(c) Any such report is to be filed no later than 30 June 2021.
Each of the parties are permitted to produce any documents filed in these proceedings together with any Orders, reports and any other information provided to the court in relation to the private Intervention Order proceedings instituted by the mother.
IT IS NOTED that publication of this judgment under the pseudonym Evert & Pascal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 5265 of 2020
| MR EVERT |
Applicant
And
| MS PASCAL |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
These proceedings come before me in relation to parenting issues for three children. The children are X, born in 2009. He is 11 years of age. Y, born in 2010, who is 10 years of age, soon to be 11. And Z, born in 2012, currently 8 but will be 9 in a months’ time.
The parties are in significant dispute. Their dispute relates to the parenting arrangements in the most fundamental of ways. The mother’s position in essence is that there should be no time spending at this stage, between the children and the father.
The father’s position is that there should be time spending and a range of options were promoted on his behalf. The father’s formal position in terms of the orders sought in his Initiating Application by way of interim orders are that he spend time with the children in one week from Thursday through to Monday and in the other week, overnight on a Wednesday night.
During the course of submissions, the father’s counsel amended that position and proffered a number of alternatives. The first alternative was an alternate weekend arrangement from Friday through to Monday. The second alternative was day-time only, each alternate weekend on a Saturday and a Sunday from 9am until 5pm. And the third alternative was that there be some therapy with a Dr D and that running concurrently with that, there be time spending between the children and the father as recommended by Dr D.
The mother’s position so far as there not being any time spending at this stage, is that there should be two things that occur before the Court contemplates whether these children should spend time with the father.
Those two things are not the subject of dispute. They are that there should be a family assessment report prepared by a psychologist who often gives evidence in parenting proceedings, by the name of Ms C. And secondly, that there be a psychiatric assessment of the father.
The mother says that once those two pieces of expert evidence have been completed, then the Court will be in a better position to contemplate what, if any, time spending arrangements should be in place between the father and the children. Just pausing briefly in relation to those two matters.
There is an agreement that Ms C prepare a family assessment report and indeed, when the matter first came before me on 7 December 2020, I made an order to that effect. It was anticipated at that stage that a report would be released by 30 April 2021 because that is the date that I set out in the orders, presumably on advice from the parties’ legal representatives that day.
So far as a psychiatric assessment is concerned, as a consequence of submissions yesterday, I now understand that there is agreement between the parties in circumstances where they each say it is not necessary that they obtain a psychiatric assessment for themselves but they each say there should be one of the other parent.
The parties ultimately yesterday, each through their legal representatives put a position that they would agree to the assessment being done on the basis that it be done mutually. That is ultimately an order that I am able to make by consent today.
From that summary, the obvious and striking dispute between these parties is the question of time spending with the father and whether there should be any time spending and if so, what terms are appropriate.
The proceedings have to be fair, had somewhat of a chequered history in their short life before the Court.
The application today comes before me as a consequence of a Review Application from a decision of the Senior Registrar.
The short summary of the proceedings is as follows. The father initiated proceedings when he filed his Initiating Application and affidavit in support on 30 October 2020, albeit that the Initiating Application was not sealed until 2 November 2020. On the filing of that application the matter was listed for a first return hearing before me on 7 December 2020. At the time of the first return hearing, the mother had not filed her answering documents.
I now understand that they were filed shortly thereafter. At the first return hearing, the matter came before me in a busy duty list. In those circumstances I was unable to hear an argument that day. I indicated to the parties, to the best that I can recall, that it would be unlikely that I would be able to hear argument in the matter prior to Christmas. That is not a circumstance that the father was willing to accede to. As a consequence, I indicated and made inquiries of the Senior Registrar as to when she would have availability to hear the matter.
I was ultimately told that the Senior Registrar would be able to hear the matter on 18 December 2020. The parties took that option. The matter came before the Senior Registrar on 18 December 2020. From the father’s perspective, much was made in submissions during this hearing that on the eve of that hearing, indeed after hours and late at night, an affidavit was filed and served by the mother’s solicitor upon him. That affidavit was in excess of 90 pages, inclusive of a number of annexures. I understand that the Senior Registrar refused to have that document before her for the purposes of the hearing.
That document ultimately was uplifted by consent in the hearing before me yesterday and it is again, not a document that I have before me for the purposes of these proceedings. At the same time as filing that affidavit, the mother also filed an affidavit from a witness and that is a document that I did have before me for the purposes of the hearing. It is an affidavit sworn by an Ms E.
Ultimately, the Senior Registrar heard argument in the matter. I do not know what submissions were made before the Senior Registrar. I do not have the benefit of the transcript.
What I do know however, is that the Senior Registrar made certain orders. The orders that she made were to continue orders that I had made by consent at the first return hearing, providing for the children to live with the mother and for a range of mandatory injunctions and otherwise injunctions to protect the children from these proceedings and to ensure that they remained in the Commonwealth of Australia.
The Senior Registrar did not make any orders for time spending between the father and the children.
The Senior Registrar did however make an order pursuant to section 11F of the Family Law Act that the children and the parties participate in a session with a family consultant and that thereafter a short-form report issue.
The Senior Registrar also made an order restraining the father from attending at the F Sports Centre at Suburb G, being a location that the children attend for swimming. In addition, the Senior Registrar made an order restraining the parties mutually from assaulting or harassing the other parent or the children at any time.
The matter was otherwise adjourned for a mention hearing before me on 2 March 2021. The purpose of that hearing was intended to be so that I could then direct where the matter should head from there, understanding that by that stage it was anticipated that I would have the section 11F memorandum in circumstances where the appointments were to be conducted on 18 February 2021.
The father however, filed a review application almost simultaneously after those orders were made. It is that review application that has resulted in the matter being heard de novo before me.
By way of background with respect to the parties, I identify the following. The husband was born in 1961 and he is 59 years of age. The wife was born in 1980 and she is 41 years of age. The parties are originally from Country H. They met, according to the wife, in 2007 in City J and they married in 2008.
There is a dispute between the parties as to when they separated and it is a very live dispute that exists. From the wife’s perspective, she asserts that the parties separated on 12 October 2019. The husband says that the parties separated on 1 April 2020. There may or there may not be significance about the date of separation. At this juncture, I am not entirely certain that a great deal turns on that dispute, although in time that may prove to be different.
The parties migrated to Australia from Country H in 2019. On any version of the date of separation, that was prior to the separation of the parties. The wife’s position is that from the time that the parties migrated to Australia, there were vast periods of time where the parties were not in fact living together in Australia.
From her perspective, that arose as a consequence of a range of factors, including that she asserts that the husband travelled extensively for his work, travelling among other places to Melbourne, Perth, Country H, Country K, within Europe, Country L, the Country M, Country N and Country O. From the wife’s perspective she says that she also travelled semi-frequently to Country H. She says that she did so to give expert evidence.
I pause at this juncture to identify that the husband is an engineer and operates his own business. There is some dispute between the parties as to what exactly that business is, in the sense that the wife’s position is that she has no real knowledge about the husband’s financial affairs, his business and his arrangements.
The wife, as I understand it, is highly educated. She not only has a Bachelor degree but she has a Masters degree, she has a post-graduate degree. She has a PhD qualifications in public service and health care. She is an associate professor in health care from P University. She is a registered public servant in Australia and she is an accredited allied health worker in Australia.
I summarise those matters because it is obvious from the wife’s extensive expertise and qualifications that she has some significant knowledge in relation to matters relating to children, their behaviour, psychology and the like. My understanding from the mother’s evidence is that she regularly gives evidence in courts in Country H. Indeed, from her affidavit I understand that following the parties migrating to Australia in 2019, she has travelled to Country H frequently to give expert evidence.
She has also travelled to Country H for a holiday. As I understand the mother’s evidence, every time she has travelled to Country H, she has done so with the children. My understanding from her evidence is that she travelled for a holiday with the children in July of 2019. She travelled in October of 2019 to give evidence. She travelled in November of 2019 to give evidence and thereafter met the husband in Country N and she travelled again and met the husband in Country O in January of 2020. She also travelled to Country H in February of 2020, on that occasion again to give evidence.
The wife’s position so far as the timing of the separation is that she conveyed that the marriage was over to the husband when she met him in Country H for a meal with the children in Johannesburg.
Ultimately, however, as I understand it, the parties agree that whatever the date of formal separation, they ultimately separated under the same roof and lived that way until approximately 7 July 2020.
The mother deposes in her affidavit that the lead-up to separation was crystallised in her mind prior to and following as a consequence of at least two encounters of unwanted sexual relations between the husband and the wife that occurred in Country N and again in Country O. The wife asserts that the husband forced himself to have sexual intercourse with her on two occasions. Once in each of those locations.
As I understand it, when the parties physically separated on 7 July 2020, it is agreed that the wife moved out of the home that the parties shared and she took the children with her. The father says that from the time that the wife moved out, the mother only allowed him to spend supervised time with the children to prevent, on his understanding, him from taking the children.
The father’s position is that it was not then and nor has it ever been a real prospect and that he has no intention of removing the children from the mother’s primary care. In a sense, that circumstance was confirmed when I made orders by consent at the first hearing that until further order, the children live with the mother.
The father’s position is that from the time of physical separation, the relationship with the mother was strained. The father says that ultimately, the mother, in about June of last year, provided him with a written settlement agreement that she wanted him to sign.
That agreement, he asserts, related to arrangements for the children and related to legislation the mother quoted in that agreement, from Country H. I have not seen that agreement but what I do have is the father’s assertions as to what that agreement contained. The mother has not responded in her affidavit material to what the father has asserted in that regard. The father asserts that the agreement set out that the mother would not require the father’s consent for international travel to be undertaken with the children and that the father would be entitled to reasonable contact with the children, including Skype and telephone contact.
The father asserts that the mother proposed that he see the children in the following way. Each Monday and Wednesday by collecting the children from school and returning the children to the mother no later than 6pm. Each Friday, by collecting the children at 8am from the mother’s home and taking them to school. And each alternate weekend from Saturday, after school sports until midday on Sunday at 3pm, dependent on whether the children wished to sleep over at the father’s home.
The father says that he refused to sign that agreement. He says, among the reasons that he refused to sign the agreement is that the proposal did not include any holiday or special occasion time with the children.
The husband asserts that upon his refusal to sign that agreement, it is then that the mother moved out of the home that the family shared. The father says from that time, despite offering him unsupervised and regular time spending, the mother withdrew that proposal. He says, among other things, that the mother took the children away without reference to him during the July school holidays and that she did so again in the September school holidays.
The father says that ultimately, from the time that the mother moved out until he issued proceedings, he was able to spend time with the children but that time was supervised at all times by the maternal grandfather. That time was in the following fashion. Each Wednesday from 5pm until 6pm. Alternate Fridays from 6pm until 8pm. Alternate Sundays from 9am until 11am. The father says that during the September school holidays, he also travelled to Town Q, where the mother was staying with the children and spent some time with them on three separate occasions.
The father says that thereafter, the mother stopped his time and that resulted in him commencing these proceedings. The father has not spent any time with the children since some time in late October of 2020.
Running alongside all of that, I now understand that the mother has obtained an Intervention Order. That Intervention Order has been pursued and obtained privately by the mother. I have a copy of the Intervention Order made on 6 January 2021.
I also understand that the Intervention Order was first made on an ex parte basis and that thereafter, it was confirmed and that the husband is now seeking to defend the making of that order and it is anticipated that a trial will ensue.
The Intervention Order names both the mother and the children as protected persons. It is prescriptive in its nature. The order contains what I call “usual provisions”, that the father not assault, threaten or harass or intimidate the protected persons and the usual provisions about surveillance and a limit on how close the father can come to the protected persons, in this instance being 50 metres and the usual provisions about no contact or communication, direct or indirect.
The order also provides some further restrictions. The order provides that the husband must not enter or remain within 200 metres of any boundary where the protected persons stay, reside or work. It also includes provisions that the father, not enter or be within 200 metres of the boundary of two specific locations, being the Sports Centre at Suburb G and the property at Town R. It also provides that the father not be within 200 metres of the boundary of any education or care facility attended by the protected persons and specifically B School at Suburb S, being the school at which the children attend.
I have the benefit of information that has been provided to the Court as a consequence of the co-location project from the South Australian Police. It is important that I make reference to that information now in terms of the chronology of how events have unfolded. What I understand from that document is that there have been seven occasions where the police have had to concern themselves with this family. The first being on 11 July and the most recent (according to this record obtained on 18 December) is a record of 7 December 2020.
From the father’s perspective, that record is telling in terms of the timing of contact with SAPOL. He says that because two occasions, one on 11 July 2020 and one on 16 July 2020, being the first and the second occasions, occurred after the mother vacated the matrimonial home with the children. Much has been made in submissions on behalf of the father that there was no contact with authorities prior to those dates.
The further communications and contact with SAPOL from the father’s perspective are also significant in their timing. He points out to the Court that the additional contact had with this family by SAPOL has all occurred after he instituted the proceedings in this Court, the first being on 5 November 2020, the second on 6 November 2020, the third on 27 November 2020, the fourth on 4 December 2020 and the fifth on 7 December 2020. From the husband’s perspective, he says the Court should take some notice of the timing of the complaints made by the mother. Much has been made in the submissions made by his counsel, that the timing speaks to undermine the legitimacy of the complaints made by the mother.
The zenith of the submission put on behalf of the father is ultimately that the Court can and should make a finding at this interim stage to not accept the mother’s allegations.
The mother’s allegations, to some extent, are difficult to discern. They are difficult to discern because the affidavit that she first filed on 7 December 2020 provides, from the father’s perspective, non-particularised allegations. To some extent, that is a fair submission but equally, it is an unfair submission. In the mother’s affidavit sworn on 7 December 2020, she deposes to some specific matters.
The first incident that she deposes to relates to the unwanted occasion of sexual intercourse that occurred in Country N, to which I have earlier referred. While a specific allegation is made that this occurred on Christmas Eve in 2019, in addition, the mother says that that type of sexual behaviour on the part of the husband had occurred on numerous previous times during the marriage. She says that she did not report the incident that occurred on 24 December 2019.
The mother also deposes to the specific occasion of unwanted sexual intercourse in Country O on 15 January. So far as that occasion is concerned, the mother does not particularise exactly what occurred on that occasion. All she says is that the husband insisted on sex, which occurred on one occasion in the same manner and circumstance as had previously occurred in Country N.
Her allegation as to what occurred in Country N is that the husband had insisted on sex, that she refused and that he forced himself on her, that she was distressed and in tears, that she attempted to push him off but was unable to do so.
In her initial affidavit the mother also set out under the heading “The husband’s abusive behaviour”, some additional matters in relation to the father.
She says in that affidavit, “that over a period of in excess of ten years, the husband behaved in an extremely abusive manner towards her and the children. The summarised particulars of which are as follows.” The mother then asserted that the husband verbally abused her at home and in public in the presence of the children and at times directed to them, stating among other things that the father called the mother a whore, a cunt, a bitch, and telling her to fuck off on a regular basis. The mother also asserts that the father drove his car at excessively high speeds, frightening the mother and the children.
The mother then deposes to forced sexual relations on a number of occasions prior to separation and after separation. She again references the incidents in Country O and Country N and she also says that there was an occasion that it occurred once they were living in Australia at T Street when the children were sleeping in the home. The mother says that on that latter occasion, the father was significantly under the influence of alcohol and had been watching R-rated material on television.
The mother also deposes that the father invaded her personal space when angered and often gesticulating as if he was going to strike her, including trying to “strangle her while dreaming”.
The mother also deposes that the father excessively physically disciplined the children, including strapping them with a belt on occasions, slapping them with an open hand on some occasions and in particular, pushing Y on occasions. The mother also asserts that the father locked the children in their rooms on occasions.
The mother deposes that on 16 April 2020, the father provided her with a letter apologising for his behaviour.
While the father generally denies the allegations made by the mother, he is not on oath with respect to how the letter that he gave the mother on 16 April 2020 came to be, beyond admitting that he wrote the letter in an attempt to salvage the marriage. He asserts that the letter was not apologising for the allegations that the mother now makes. He says that he was apologising for the fact that the parties had frequently argued during the marriage and that neither of them had backed down. He says that he wrote the letter of apology in the hope that the parties could move forward and be better people with each other.
The letter of apology is non-specific when I look at it, in terms of exactly what the father is apologising for. One answer may be to accept that which the father asserts in that regard, the other alternative is to accept that it is indeed an apology for all of the acts of family violence the wife alleges were perpetrated by the father during the relationship. At this stage, that is not something about which I am able to make a finding.
In addition to the allegations to which I have already identified, the mother additionally identified in her affidavit of 7 December 2020 an incident which is said to have occurred on 7 July 2020. She says that on that day, she told the father that she was intending to take the children on a holiday to Town Q. She asserts that the father became enraged and pinned her to the kitchen wall. She says he said that he would never let her divorce him, that he pushed her to the floor and started throwing her around. She says that he then stopped the assault and telephoned her mother, the maternal grandmother, in a rage.
She says that her father was on his way to collect her but that she ultimately fled the home before her father arrived. She says that after that incident she was able to retrieve items in the presence of police officers. She complains the father has retained a significant quantity of her practice records, files and materials that he has since refused to return those items.
The mother then deposes in that affidavit to four reports being made to police since 7 July 2020. She deposes to those reports in very brief terms. So far as a report made on 16 July 2020, she says that it relates to the assault on her by the husband on 7 July 2020.
So far as a report made on 18 October 2020, she says that she made the report following a telephone call from the husband, where she asserts that the husband was crying during the call and that he told her that he was going to kill her and the children and then kill himself. She says that this was the last time she has had contact with the husband.
She deposes to a report made on 6 November 2020, following telephone advice from the manager of the Sports Centre, informing her that the husband attends at the centre most days, whether or not the children are there and that he is on their so-called “watch list” and that they have had to ask him to leave on an occasion, there having been some sort of altercation, particulars of which she was not given.
The mother also deposes to a report on 4 December 2020 following the mother allegedly having sighted the father at the children’s school at approximately 8.45 am and the teacher asking her to enter and remain in a classroom for her safety. The mother says that she told the father on that occasion that he was scaring the children and that he replied, “you will see how this ends for all of you, you fucking cunt”. The mother says that the police have now indicated that they will investigate the husband’s behaviour in relation to stalking.
The mother deposes that she has also made a report to child protection services, which I assume she means is the Department for Child Protection. As I understand it, the Department for Child Protection have no open file in relation to this family. I will come back to the police reports and allegations by the mother in a moment.
It is also agreed that across all of this period of time, the parties engaged in mediation, child-inclusive, with a Dr D. Ultimately, however, that process concluded in late September 2020 with the parties unable to reach an agreement.
So far as the allegations made by the mother are concerned, they are, as I indicated earlier, both specific and generalised allegations. The specific allegations and in particular, the alleged threat to kill the mother and the children bears some closer consideration. It bears some closer consideration because this is the allegation upon which the mother says there is significant risk of harm to both her and the children. With regard to that allegation and reference to the information that I do have before me from SAPOL, I understand the following.
The mother is recorded to have first reported that incident on 6 November 2020. The mother is said, some weeks after the incident occurred, to have reported to police that she received a phone call from the father where he was reportedly crying and then not crying and said words to the effect of, “I know exactly how it happens in the cases that you have worked with, where people go and kill their family and themselves because that is where I'm at”.
That is not a matter which the mother deposed to in her affidavit on 7 November 2020. The mother’s sworn evidence does not contain the exact words alleged to have been spoken by the father. I do not know, as I sit here, if the mother adopts that which the police recorded in their record or whether she asserts that it was something different.
Be that as it may, the mother then raised her concern about the father’s alleged threat to kill when she had further contact with the police on 7 December 2020. On that occasion, the mother had attended the police station to make a report because the husband had turned up at the children’s swimming lesson.
On that occasion she reported that he was standing behind a pole watching the children, that the children became anxious, that they got out of the water and she left immediately. The mother reported to the police that there was an order that had been made in the Family Court, providing for her to have all three children. She said that there were no conditions in the order preventing the father from being near the children and that there was no Intervention Order in place. The record records that “no offences were disclosed today”.
The record goes on to record that the mother was told that “we” – being the police – “cannot prevent the father from attending places she attends at with the children”. The mother is recorded to have said that she is in the process of lodging an application through her lawyer for an Intervention Order. The is then mother recorded as saying that she initially attended saying she wanted to speak about stalking:
At the end of her conversation today she then added that her husband should not be turning up to places she is at with the children as he reportedly made threats to kill her and the children previously this year. She said that the father reportedly said he would kill her and the children in a similar fashion to the cases that she investigates.
The record goes on to record:
This had previously been reported to police below-
being the record on 6 November which I have already referenced:
The conversation at the time was, “I know exactly how it happens in the cases that you work with, where people go and kill their family and themselves because that is where I am at”.
The record goes on to record:
This was not interpreted at the time of reporting as threats to kill.
The record goes on to record that the police suggested to the mother to change the swimming centre that the children attend so that the father does not know where the children are swimming, if she is not happy with him turning up to lessons. The record then records that the mother said she did not have any conversation with the husband that day and that she says she refuses to speak to him.
As I say, the alleged threat to kill is one that has taken on some significance in these proceedings. It has taken on significance because the mother, through her solicitor during the course of submissions, has identified that as the risk factor to these children and to her, which the Court is required to assess.
So far as the husband’s response to those allegations are concerned, he deposes in his affidavit of 14 December 2020 that he denies each and every allegation made by the mother contained in paragraph 27 of her affidavit of 7 November 2020. That being the paragraph which sets out all of the four occasions that the mother has made reports to SAPOL.
The father also goes on oath in that document to record that he has been attending the children’s school and the Sports Centre on occasions as that has been the only method that he has been able to have any contact with the children since the mother terminated the time spending arrangements.
The allegation made by the mother, that the father has threatened to kill her is not one that I am able to determine today. There is a very real dispute between the parties as to firstly, whether any statements were made; secondly, I am not clear, other than from the police record, and not as a consequence of what the mother has deposed in these proceedings, to understand exactly what the mother now asserts the father to have said.
I understand regardless however, that the mother has taken what she asserts the father to have said to be a threat to kill her and the children. That is not something that I treat lightly.
The father’s position through counsel has been that it is an allegation that I should either dismiss entirely and make findings that it did not occur today, or alternatively that I should give little weight to the allegation. The position of the father is that little weight should be given to the allegation because of the nature in which these proceedings have unfolded and the timing of when reports have been made to police.
As I have just summarised, from the father’s perspective, his position is that the building nature of the allegations made by the mother require closer scrutiny and must lead the Court to have some concerns as to the veracity of that which the mother asserts. I have been directed by the father’s counsel to the Full Court decisions in Marvel & Marvel[1] and SS & AH[2]. I have also been directed by counsel for the father to the Full Court decision in Deiter & Dieter[3].
[1] [2010] FamCAFC 101
[2] [2010] FamCAFC 13
[3] [2011] FamCAFC 82
Indeed, having been directed to that decision, I took time during the course of submissions made on behalf of the mother to explain to the mother’s solicitor exactly what those cases say, to give the mother’s solicitor an opportunity to make submissions in that regard. I must say that I struggled to get coherent submissions from the mother’s solicitor on those topics. Indeed, I read, during the course of the mother’s solicitor’s submissions, the quote that is often quoted from the decision of Dieter & Dieter[4]. If I am required to publish my reasons I will insert the quote that appears at paragraph 61 of Dieter & Dieter[5], regarding the assessment of risk.
“The assessment of risk is one of the many burdens placed on family law decision makers. 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.”[6]
[4] [2011] FamCAFC 82
[5] Ibid.
[6] Ibid, 61.
Ultimately, I was told by the mother’s counsel that the risk to these children is death as a consequence of the threat to kill. It was ultimately promoted that I should accept the mother’s version of events, that the father has made those threats and that the impact of the severity of those events – these being matters that are surmised and the mother’s solicitor agreed – the impact of the severity of those events would be dire in that it would cause the loss of life. Submissions were not otherwise made as to any other risk factors that present themselves for these children on behalf of the mother.
Despite me attempting to elucidate further submissions from the mother’s solicitor, I was unable to do so. As I understand the mother’s affidavit material, I understand that her case, I assume, is much deeper than that which her solicitor submitted to me. I understand that because she makes allegations of family violence; she makes allegations of coercive controlling behaviour, she makes allegations of being the victim of sexual assaults at the hands of the father and she makes allegations that the children have been victims of physical abuse by the father and emotional abuse.
As I commented earlier, the majority of those allegations are made by the mother in her affidavit in a generalised way. That is something that concerns me. Non-specific, generalised allegations, when put in that way, have the tendency of undermining the nature of the allegation that has been made. It is impossible for a judicial officer to understand and weigh up the allegations made when there is no specificity provided in the affidavit material. On the one hand, the father urges me to ignore the allegations. On the other hand, the mother says that in due course, she will particularise the allegations that she has made.
At this juncture, I am not able to make findings about the allegations one way or the other. The husband urges that if I am unable to make findings then I should give little weight to the allegations that the mother has made.
In any parenting proceedings, I am mindful of the legislative pathway identified by the Full Court in Goode & Goode[7]. Again, during the course of submissions, I was directed to both Goode & Goode[8] and the legislative pathway by the father’s counsel. Sadly, those submissions were not made on behalf of the mother.
[7] (2006) FLC 93-286
[8] Ibid.
I ultimately attempted to elucidate those submissions from the mother’s solicitor. In particular, I identified for the mother’s solicitor that given the interim nature of the proceedings, I did not consider that I was able to make any orders with respect to the topic of parental responsibility. I thereafter indicated that I would ultimately make orders that I considered to be in the children’s best interests with reference to those factors set out in section 60CC of the Act. I highlighted the primary considerations. I did so because it strikes me that the assessment of risk for these children is the most crucial factor for me to determine at this stage.
I highlighted it by identifying for the mother's counsel the competing primary considerations in sections 60CC(2), namely the benefit of the child having a meaningful relationship with both of their parents, balanced against the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. As I understand the mother’s case, she asserts firstly that there has been family violence in this relationship within the definition provided for in section 4AB of the Act. As I have said, they are not matters about which I am able to make findings.
In addition, the mother asserts at least one occasion of physical violence directed to the children, when the father is asserted to have hit the children with a belt. The mother also asserts psychological harm. She asserts that because she says not only have they been exposed to some of the family violence that she experienced, they have in addition, been the victims of that family violence.
From the father’s perspective, he says, having denied broadly the allegations made by the mother, that these children are at risk of psychological harm if they were to remain in the mother’s primary care and have no relationship with him.
From his perspective, he says that the mother’s determined course to prevent a relationship between the children and he speaks to the long-term psychological harm that these children will suffer from being denied a relationship with him. He goes further and says that the mother, with all of her qualifications and experience, should know better. He says that she lacks insight into the consequences of her behaviour on the children.
At this juncture these are not matters about which I am able to make findings. Having said that, I am mindful of what the Full Court said in Dieter[9] and, in particular, that the assessment of risk comprises of two elements, the first being the prediction of the likelihood of the occurrence of harmful events and the second being a consideration of the severity of the impact caused by those events.
[9] [2001] FamCAFC 82.
I have the benefit of the child-inclusive memorandum prepared by Family Consultant Matthews on 18 February 2021. What is significant to me from that document is that the mother reported to the family consultant that the father has two different sides, volatile and aggressive, and that he has behaved in a very manipulative fashion, that he has been coercive and she detailed matters, to which I have already referred.
From that document I have the benefit of understanding at this early juncture the children’s perspectives. There appears to me to be a mutual presentation of all three children in that they have each reported the father’s anger, they have each reported an occasion in Country H where they had been locked in their rooms for an hour or so after arguing about a television remote control and they have each reported one occasion where the father is said to have hit one of the children with a belt some four or five years ago.
From the father’s perspective, he says the children’s views should be tempered. They should be tempered from his perspective because they have been under the influence of the mother and not had a relationship with him whatsoever since October of last year. He says they should be tempered so far as the allegation of being hit with a belt is concerned because of the fact that it is said to have occurred when X was four or five years old and that the other children will have been even younger. It is the father’s position that it is difficult for the Court to accept the children’s version and that that incident occurred based on the young ages of the children at the time.
All of the children appear to have reported to the family consultant that they do not want to see the father. The family consultant commented that from her perspective the children all had a positive relationship with the mother and the maternal grandparents and that the relationship between the father and the children was much more complicated, with all of them presenting as very hesitant to see him.
The family consultant identified some concern with regard to the children’s report of inappropriate discipline by the father. The consultant noted that it was not possible to gain an accurate timeframe for any of those events or the frequency of when they occurred.
The consultant went on to comment that, while it is important for the children to maintain positive relationships with both of their parents, it is also important that it occurs in a safe manner. The consultant went on to comment that her impression of the children was that they presented as genuine and that they did not seem to have been coached by an adult, with each of them seeming to discuss their own experiences and views.
The family consultant ultimately commented that the parties have a very poor co-parenting relationship because there is no communication that occurs between them and it is difficult for the family consultant to conceive of how the parties might be able to amicably resolve their dispute without the need for ongoing litigation.
The family consultant went on to comment about the safety of any relationship that is to be had between the children and the father and that, while remaining a matter for evidence, if the Court was to consider time spending arrangements that it should be supervised to assist the children to feel more at ease and to be suitably protective of them.
The consultant also recommended that there be a psychiatric assessment of the father given the allegations raised.
The consultant recommended that the children participate in a post-separation course such as the Banana Splits course.
The consultant also recommended the preparation of a family report. I pause at this juncture on the topic of a family report.
Much complaint has been made in the context of the father’s general complaints as to the way the mother has conducted these proceedings about the family report and the fact that it has not yet commenced. I am conscious that I first made an order for the report at the first hearing on 7 December 2020, that being an order that I made by consent. I understand that that is an order that the mother promoted in her response. That, however, is not the only time that that topic has come up as and between these parents. The father in his affidavit filed on 19 February 2021 deposes that he first raised the topic of a family report and, indeed, one of the very people that is now the subject of agreement, namely Ms C, through his solicitor on 2 October 2020 prior to issuing proceedings.
The father deposes that no response was received to that correspondence and chasing letters were sent on 15 October 2020, on 11 November 2020 and on 27 November 2020. Ultimately, the father deposes that, having never received a response and understanding through the mother’s responding documents that she promoted Ms C, his solicitor took the opportunity to prepare a letter of instruction to Ms C and that was sent to the mother’s solicitors on 11 February 2021. By 19 February 2021, when the father deposed to his affidavit, he had not received any response to all of that correspondence. What I now understand is that the letter of instruction was signed prior to the hearing yesterday.
I also understand that the mother’s solicitor takes some responsibility for the lack of progressing that issue. I do not know to what extent the blame can lay at the feet of the mother’s solicitor and to what extent the delays rest at the mother’s feet. What I do know, however, is that the delays are significant. They are significant because whereas when I made the orders in December of last year it was anticipated that a report would be available by the end of April, some two months hence from today, what I now understand is that there is a very, very significant delay. Ms C is not able to commence appointments until July/August 2021 and her report will not be available until August/late September 2021 at the earliest.
That delay concerns me. It concerns me because, from the mother’s perspective, there should be no time spending whatsoever until the release of the report. In real terms, what that means is that a period of over 12 months will elapse that the father has not seen these children and these children have not seen the father. That concerns me.
From the father’s position, he says that the mother’s allegations are without merit. If the father is right about that, a period of 12 months where these children have not seen their father and have not maintained any form of relationship with him is not acceptable.
From the mother’s perspective, however, she says that the risk of harm to them in the form of death is so severe that this is one of those cases where the Court is required to tread carefully.
During the course of submissions I raised with the parties the prospect of supervised time spending. I did so because, while I am not bound to adopt any of the proposals promoted by the parties, I was mindful, firstly, that it was something the family consultant recommended and, secondly, I wanted to understand from the parties why that would not be suitably protective of the children.
From the father’s perspective he indicated that if the Court was to order supervised time spending then he promoted that supervision should be undertaken by an external and independent expert and, indeed, three people were promoted, two of whom I understand are social workers and the other may either be a social worker or may be a psychologist.
All three supervisors were proposed off the cuff, to be fair, by the father’s counsel, were noted by the mother’s solicitor as being females. From the mother’s perspective, she says that supervision by an external professional supervisor and, in particular, the three identified by the father’s counsel on his feet during the hearing were not suitably protective. The main reason advanced on behalf of the mother is because all three proposed supervisors are women. That is a submission that I struggle to accept. The gender of a proposed supervisor who is a professional alone, in my view, does not conclusively determine whether or not someone is able to act protectively. That comment I make is made all the more stronger because it is not my understanding that the mother and/or her solicitor have any understanding as to the qualifications and experience of any of the three professional promoted by the father’s counsel during the hearing.
Either way, I indicated that if I was to embark on a process of making orders for supervised time, I did not intend to identify exactly who the professional supervisor would be and that that is something the parties should be given the opportunity to agree, so that they can each make their own independent inquiries as to each person’s experience, qualifications and expertise before reaching an agreement as to that very important topic.
The mother’s position is that the children would be best protected by having their time supervised by the maternal grandparents. She promotes the maternal grandparents because they are obviously known to the children, they know the father and she says that at least the paternal grandfather has supervised time before.
I am not entirely clear why it is that the mother is convinced that her parents are able to act more protectively than an independent supervisor. In any event, from my perspective, this matter, as I have said several times now, turns on the assessment of risk. I am not certain that certain harmful events, as alleged by the mother and, in particular, the threat to kill, has occurred. I am equally not satisfied that it has not occurred. I make it clear I am unable to make a finding at this juncture. I accept, however, that if the mother is right about that, then if the children are to pursue a relationship with the father at this interim stage pending a final determination that it needs to be done in a way that is suitably protective of them.
I am equally unsure as to whether any of the other allegations asserted by the mother have occurred. I say that because they are denied by the father. Again, they are factual disputes that I am not able to determine today.
I do, however, have some significant concerns about the manner in which the wife’s case has been presented and the manner in which it has unfolded. During the course of the hearing I was told further information on behalf of the mother which is not in any affidavit material before the Court. In particular I was told of an allegation that the mother is said to have made in proceedings regarding the Intervention Order. The allegation is that the father has threatened to have sex with the parties’ youngest daughter if the mother would not accede to his sexual advances.
While a shocking allegation in terms of the nature of the allegation, what I am perplexed and confounded by is that that allegation has not made its way into any document filed by the mother in these proceedings.
What I also understood during the course of the submissions from the mother’s solicitor yesterday is that the mother has engaged with SAPOL with respect to an alleged breach of the private Intervention Order. That is, again, something which the mother has not deposed to in these proceedings and it is perplexing and confounding that she has not done so given the breach is alleged to have occurred on 6 January 2021.
That neither of those allegations have made their way into any affidavit material filed in this Court, is confounding. They are serious allegations. In this Court I can only proceed on the basis of matters that are before me by way of sworn evidence. I am not to understand or to divine what the mother may or may not have presented in the proceedings in the Magistrates Court. If they are matters that are serious and allegations that the mother makes then they need to be before me in these proceedings by way of affidavit, not just so that I know the evidence upon which the mother relies, but also so that the father is afforded the opportunity to respond to the allegations that have been made against him.
From the father’s perspective, the manner in which the mother’s case has been run, as I said earlier, must from his perspective lead to a conclusion that the Court should give little weight to the allegations that have been made by her.
While I have already indicated that at this stage I am not satisfied that certain harmful events have or have not occurred, I can accept that if they have occurred then the mother’s concerns as to what might befall the children are legitimate. Equally, however, if the father’s denials prove to be the way the evidence ultimately falls then I must have very real concerns that the mother is exposing these children to psychological abuse.
In all of those circumstances I asked the legal representatives for both of the parties why supervision would not be suitably protective.
The father’s counsel identified, quite properly, that supervision was an avenue open to the Court and that the father would accede to that path and that he would pay for any professional supervision that the Court ordered.
The mother’s position seemed to be that the only form of supervision that she would support would be if her parents were appointed the supervisors. I have some significant concerns about that position. It is not clear to me why an independent supervisor would not be appropriate, particularly if it is one that each of the parties have input into identifying.
The benefit, from my perspective, of an independent supervisor is that the Court has the benefit of an opinion and observations from an independent expert. What would usually happen is that a report will be prepared by that expert. That is significant, from my perspective, because it is another avenue of independent evidence before this Court as to how these children are managing and how each of the parties are presenting. I would not have the benefit of that independent source of evidence if the mother’s parents were to be the supervisors.
In addition, it is not lost on me that from the father’s perspective the mother’s parents are inappropriate. He says that for a range of reasons, not least of which they have a vested interest in the outcome given they are the mother’s parents, but, secondly, because his relationship with them is now strained because they have supported the mother’s assertions and her position in these proceedings.
It is not lost on me that these parents have no other supports in this country. From my perspective, supervision protects both parties and these children. It ensures that at this stage and pending anything further material coming before the Court these children have the ability to maintain a relationship with the father, but that they are able to do so in a safe fashion; in a fashion in which they are protected from all forms of harm because they have a trained expert there able to intervene if anything inappropriate occurs. From my perspective, that should give the mother some very significant comfort and it should ensure that she is able to support some time spending arrangements between the children and their father.
Before I make orders, I note that there are some additional matters which are the subject of dispute between the parents today.
In pursuing his application for time spending the father has also asked the Court to revisit and vary the Intervention Order that has been made. He says that because he wishes to attend the children’s school for things like parent/teacher interview and the like. He also wishes to be able to attend the Sports centre to watch the children at swimming.
The mother opposes any variation to the Intervention Order, understanding from everyone’s perspective that I have the power to do so as a consequence of a provision set out under in 68Q of the Act.
From my perspective the children, if they are to begin having a relationship with the father, as I intend to order today, should otherwise be left to be children and by that I mean their school should be a safe place for them. It should be a place where they are not confronted by either of their parents turning up unexpectedly. In my view it is not appropriate that that continue or that it resume. I feel the same way so far as their swimming lessons are concerned. From my perspective, these children are best protected by not being forced to deal with unexpected events. As much as possible, if they are able to predict what is to occur that is a much safer and stable arrangement for these children emotionally, if nothing else.
Having said that, I do consider it appropriate that the father be able to attend parent/teacher interviews and the like. I say that because it is proper that the father be informed and involved in the children’s lives in that way.
While I have not made an order and I do not intend to make an order with respect to parental responsibility today, the presumption in a sense still applies. I accordingly intend to vary the Intervention Order to enable to father to attend any parent/teacher interviews and/or meetings with teachers of the children’s school.
The other issue that is in dispute relates to whether there should be telephone communication between the children and the father.
From my perspective, given the acrimony that exists between these parents, I do not consider that there should be a regular telephone call that occurs. I do, however, consider it appropriate that if the children wish to speak to their father that their mother support that and that she facilitate them telephoning him.
There is a further issue that is live in these proceedings or, at least, was live until yesterday and that is the topic of divorce. The mother had filed a divorce application, but, given the dispute as to the date of separation, ultimately by consent I dismissed that application, noting that the mother is to file a fresh application after 1 April 2021. As a consequence, an application for costs has been made by the husband. I intend to reserve costs and, indeed, I made it clear that I was not going to hear submissions from the parties at this stage in that regard.
For all of those reasons I now make the following orders.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of Judge Kari.
Associate:
Date: 16 March 2021
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