Fagan and Fagan - [2012] FMCAfam 1511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAGAN & FAGAN

[2012] FMCAfam 1511

FAMILY LAW – Parenting – interim – mother’s serious allegations of family violence, denied by father, and inconsistent with business records produced on subpoena.

Applicant:

MR FAGAN

Respondent:

MS FAGAN

File Number:

SYC 1314 of 2012

Judgment of:

Altobelli FM

Hearing date:

11 July 2012

Date of Last Submission:

11 July 2012

Delivered at:

Sydney

Delivered on:

11 July 2012

REPRESENTATION

Solicitors for the Applicant:

Willis Lawyers

Solicitors for the Respondent:

David Cohen & Co

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Children [X] born [in] 2002 and [Y] born [in] 2010 live with the Father.
The Children spend time with Mother as follows:
(a)After school on Fridays until 5.00pm on Sundays; and
(b)Half the school holidays as agreed, and failing agreement in the first half in even numbered years, and second half in odd numbered years.
The Mother spend time with the Children from 10.00am on Thursday 12 July 2012 until 5.00pm on Sunday 15 July 2012.
Changeover will be facilitated as follows:
(a)The Father will ensure that the Children are available for the Mother to collect from [omitted] Station at the commencement of contact visits;
(b)The Father will collect the Children from the Mother’s home in the downstairs foyer at conclusion of contact;
(c)The Father is to ensure that the paternal grandmother does not attend at changeovers.
The Children have telephone contact with the Mother as agreed, or failing agreement, on Wednesdays from 5.00pm until 6.00pm.
The parties refrain from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.
(c)Exposing the Children in any way to age inappropriate material.
The parties shall be restrained from consuming alcohol or using illicit drugs while spending time with the Children.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Dispute Conference with a Family Consultant in this Registry at a time and date to be determined by the Registry and pursuant to section 11C of the Act such conference be reportable.
The proceedings be adjourned to 4 September 2012 at 9.30am for mention.

THE COURT NOTES THAT:

An interpreter in the Thai language be appointed to attend the Child Dispute Conference at a date to be fixed as well as the mention on 4 September 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1314 of 2012

MR FAGAN

Applicant

And

MS FAGAN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The interim application before me relates to two children, [X], who is nine (9), and [Y], who is two (2). The applicant is the children’s father. He describes himself as a [occupation omitted]. He is 37 years old and lives in [omitted]. The respondent is the children’s mother. She undertakes home duties. She’s 38 years old and is presently living in [omitted].
The application raises issues about where the children should live and how much time they should spend with each other. On 30 April 2012, I made ex parte orders for the children to both live with their father, and for there to be contact as agreed. The matter then came before me on 6 July 2012. The mother attended and was represented by her solicitor, Mr Cohen. A Watchlist Order was made. I noted an agreement between the parents about the mother spending time with the children, and the matter was set down before me for an urgent interim hearing this morning.
The father seeks final orders. I start with describing the final orders that each parent seeks and making some brief observations about that before turning to the interim orders they seek. The father’s final orders are for equal-shared parental responsibility, and that [X] spend equal time week about with him and the mother, and that [Y] lives with the mother and has contact two days per week with the father, but then week about equal time from when he starts school. The observation I make about the final orders proposed by the father is as follows: they seem an odd final proposal for someone who says he has such concerns about the respondent mother.
The mother seeks final orders for equal shared parental responsibility that the children live with her, that [X] have contact with the father weekly after school Thursday to 5pm Friday, and [Y], likewise, on Fridays. And I make the same observation – these are somewhat odd orders to propose, given the concerns that the mother has for the children whilst in the care of the father.
With that backdrop, the orders sought by the father on an interim basis are the interim orders described in his amended application, filed 28 May 2012, and that is sole parental responsibility – that the children live with him, that there be contact as agreed, but supervised. To be fair to the father, in his amended application, filed 28 May, the final orders he seeks are in line with the interim orders, but one of the issues for the court is to gauge whether the change in the orders sought between an application filed 8 March and an amended application filed 28 May reflects the evidence before the court. Certainly his interim proposals reflect concerns that he has about the mother, her stability, her capacity to care for the children.
The interim orders sought by the mother are contained in the interim orders contained in her response that was filed 5 July. She proposes the children live with her, there be equal-shared parental responsibility, that the father spend time with [X] weekly from after school on Thursday to 5pm on Friday, and [Y] from 10am to 5pm on Friday.
The parents raise some quite serious issues in their affidavits. The history of the matter is outlined in some of the earlier affidavits, for example, in the father’s affidavit of 6 March he deposes that on 1 March 2012 the mother moved out of the home with [Y] only, a somewhat significant event, I interpose, because it means that the mother left [X] with the father; again, something which is somewhat odd in circumstances where she raises such serious issues about the father. In any event, in the father’s first affidavit, he deposes to the mother’s anger management issues, erratic behaviour, self-harm at that stage.
In his affidavit of 25 May 2012, the father deposes to discovering that the mother and [Y] had, in fact, travelled to Thailand without his knowledge and consent. However, during this period he asserts that the mother left [Y] in the care of someone else while she was doing other things. He raises concerns about the mother’s mental state. He also says that he travelled to Thailand, eventually collected [Y], and returned to Australia, thus reuniting the children. In his affidavit of 25 May, he raises concerns about the mother’s collection of pills, which he says he discovered on 1 March 2012, when she left the home.
The mother’s first affidavit was on 5 July 2012. She alleges in quite detail that the father was violent towards her, especially sexually violent. She deposes to non-consensual sex. She says that, despite the matters she deposes to, that she was too scared to report the matter to the police. She gave a long history of this conduct. She deposes to having obtained appropriate accommodation. She raises concerns about the sleeping arrangements that the children have with the father, and raises concerns about his capacity to care for the children, including the very long hours that he works. She denies that she left [Y] in the care of someone else when she was in Thailand.
The mother has two supporting affidavits, one sworn 6 July 2012 from a Ms C, who says that she has never noticed the mother take pills, be moody or depressed, or have anger management issues. She did notice a change of mood when the mother commenced the relationship with the father, and described her as sad and depressed. She says that in June 2012, the mother confided in her about the father’s family violence and sexual violence. The mother relies on an affidavit of a

Ms S, who is a mental health social worker; she annexes a report of 5 July 2012. She sets out that the referral was from the general practitioner, who sought assistance and management due to relationship breakdown, and what was described as severe anxiety and depression.
The report indicates that the mother was first referred for counselling in early March 2012, after the date of separation, but did not, in fact, make contact for counselling until 4 May 2012, but that may well be explained by reference to the mother’s travel overseas. The mother was distraught at this time about lack of contact since returning to the children, returning to Australia, on 2 May 2012.
The mother acknowledges that she consciously left [X] with the father when she went overseas. She says that she went to Thailand because – and I quote – she was “terrified” of the father. She says that he followed her to Thailand and she handed over [Y]. The report contains the mother’s report to the social worker of a long history of sexual violence – over 10 years. There are multiple references to the bleeding that was caused to her as a result of this behaviour on the part of the husband.
She says that the last forced sex was in February 2012, when she returned from Thailand. She expresses concern that [X] will come across photos and videos of sex acts and pornography. She explains that they went to see a sex therapist in October 2011. She alleges that the relationship was a coercive one; there was financial abuse, emotional abuse, as well as sexual abuse. The affidavit contains a post-traumatic stress questionnaire which, of course, is based on self-report, and which indicates severe post-traumatic stress. Ms S thinks that the mother is depressed, possibly has post-natal depression, and suffers from anxiety and post-traumatic stress. The mother is apparently on antidepressants and receiving counselling.
The evidence presented to the court by the parents is quite conflicting, and in some respects, internally inconsistent as well. This morning the court was assisted by having access to documents produced on subpoena, and it is necessary to make some comments about that. Exhibit A1 consists of documents produced the Department of Foreign Affairs and Trade, being, I’m satisfied, business records. Amongst these documents is a statement made by a Ms F, which indicates that the mother placed [Y] in her care for almost a month whilst the mother was in Thailand. If this is correct, it is consistent with the father’s assertion, and it is directly inconsistent with the mother’s assertion.
I need to be careful about the weight that I give to this document; nonetheless, in the context of interim hearings, and it being a business record and a statement from someone who appears to have no direct interest in the outcome of these proceedings, but someone who the mother entrusted with the care of [Y] for at least a period, I’m satisfied that some weight is appropriate. If it is the case that the mother left [Y] in the care of this person for a month while she was in Thailand, it raises a number of important but unanswered questions about the mother’s parenting capacity. I can make no findings, but it certainly raises questions in my mind.
I also accept, as Mr Willis for the father submits, that it does raise issues about the mother’s credibility, given that she was quite firm in her denial about this particular incident. Exhibit A2 is a bag of pills; I can make nothing of this. It is by no means clear just how significant the issue of the mother’s consumption of these pills in the past or in the present is an issue. I just do not know.
Exhibit A3 consists of documents produced by the Australian Centre for Sexual Health. The referral for therapy is consistent with aspects of both the mother and the father’s case, and indeed, it was referred to in Ms S’s report. The documents really do not assist me. In particular, I don’t think the documents assist me to assess the mother’s evidence about family violence. I would not expect the mother to disclose to a treating professional about the violence she says she suffered, in the presence of the father, hence these documents do not assist.
Exhibit A4 is the bundle of documents produced by Tresillian Family Care Centres. It’s a somewhat extensive and comprehensive file, covering the various periods in 2010. It is a significant document regarding the mother and contains, for example, her own admissions or assertions about the following: firstly, a past history of depression; secondly, experiencing past mental health issues; nextly, a history of abuse in her childhood; and nextly, statements by her of feeling exhausted. The impression formed from reading these documents is that the mother had a very traumatic childhood, and that there are possible unresolved issues there which were described in the notes, and I quote, “as family of origin issues.”
Throughout the records, there are strong affirmations of the father’s love and support, and what is significant about these affirmations is that they clearly take place over several different dates with different people, and in context where the father is not present. Moreover, there are specific repeated denials on different dates of any family violence. In addition, the records contains admissions as to her own anger management problems and mood swings.
The Tresillian records are really quite inconsistent with the report that the mother gave to Ms S. The documents produced by Tresillian certainly raise questions in my mind about the mother’s allegations of family violence, and certainly raises concerns about the mother’s emotional stability. However, the evidence doesn’t raise issues about the mother being a flight risk. The fact is that I have made a watch list order.
I am not satisfied, on the evidence before me, that there has been family violence such that it would cast a shadow over these proceedings and dictate the statutory pathway that I ought to follow, particularly in the context of the recent amendments.
I make it very clear, I am not ruling out family violence, but the evidence before me, and particularly the documents produced by Tresillian, really do cast a doubt over the assertions made by the mother. Clearly, those assertions are not raised in any way by the report of Ms S, which was based entirely on the mother’s self report.
The evidence raises concerns about aspects of the mother’s life. At the moment her residential stability, and also her emotional stability, given her own admissions about anger management issues, which are quite consistent with the father’s concerns in this regard. However, I’m not concerned about diet drugs or drug taking, but again, I do not rule that out.
The father, through his evidence, indicates that he has a support system in place, consisting of his family and a nanny, that provides a level of stability for these children that I would describe as adequate for the time being. The mother’s proposal would, for example, involve significant change in [X]’s life, in terms of, for example, a change of school.
I accept that the mother probably was the person who provided primary care for these children during the relationship with the father and during the children’s lives, and that may well be a very significant issue at a final hearing, but in the short term, the issues about her residential and emotional instability contraindicate making a decision on an interim basis that is too influenced by that history of primary care. As I say, the support system the father has in place is adequate.
The father raises concerns about the mother, but despite the issues I’ve raised, I do not believe that those concerns go so far as to require the mother’s time to be supervised. I intend to make orders that restrict both parents

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Altobelli FM.

Associate:

Date: 8 May 2013