Frobisher and Mackie

[2009] FamCA 1340

FAMILY COURT OF AUSTRALIA

FROBISHER & MACKIE [2009] FamCA 1340

FAMILY LAW – CHILDREN – with whom a child should spend time– interim application – allegations of family violence and emotional abuse – appointment of an independent children’s lawyer and a family consultant

Family Law Act 1975 (Cth) ss 11F, 60CC, 60CC(3), 60CC(4), 60CC(4A), 62B, 65DA(2), 68L(2)

Family Law Amendment (Shared Parental responsibility) Act 2006 (Cth)

Cowling(1998) FLC 92-801
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

APPLICANT: Ms Frobisher

RESPONDENT: Mr Mackie

FILE NUMBER: HBC 484 of 2009

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Bennett J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Chandler

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of Tasmania

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Bowlen Dunstan & Associates

Orders

IT IS ORDERED:

1. That pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of the Melbourne Registry of the Court and as part of the family’s participation in the Child Responsive Program:-

   a)The father is to attend at Level 5 of the Melbourne Registry of the Court at 9.15 am on 20 October 2009;

   b)The mother and the paternal grandparents, Mrs Mackie Snr and Mr Mackie Snr, attend at 11.00 am on 20 October 2009;

   c)All parties should be prepared to remain for the entire day;

   d)The mother also be responsible for bringing the child D born … January 2009 to the Melbourne Registry on the same date and time of her own appointment:

   e)The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

   f)The parties sign and complete the acknowledgement form for the Child Responsive Program and bring it with them on the day of their appointment;

   g)A place be reserved in the child-minding section of the Court for the child and it be maintained for him throughout the day;

   h)The Family Consultant may appoint further interviews for the parties and the child; and

   i)It is requested that the Family Consultant prepare a Parent and Child Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court prior to the adjourned date and, if practicable, by no later than 4 November 2009.

2. The Family Consultant may, at the direction of the presiding judicial officer, be required for cross-examination on the hearing of the application for interim parenting orders.

3. That for the purpose of the Children and Parent Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

4. That this matter be adjourned before me on 6 November 2009 at 9.00 am following the release of the Children and Parent Assessment on 4 November 2009 for directions for further hearing and determination of any issues about interim parenting arrangements.

5. That for the purpose of the Children and Parent Assessment the mother is to do all acts and things necessary to ensure that she and the child D arrive in Melbourne not less than 24 hours prior to the appointment time with the family consultant.

6. That the solicitors for the mother be responsible for notifying the paternal grandparents of their proposed involvement in the assessment process and be in a position to prove compliance with this Order on the adjourned date.

7. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child D born … January 2009 be independently represented by a lawyer AND IT IS REQUESTED that the Legal Aid Commission of Tasmania arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date.

8. That forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the independent children’s lawyer file a Notice of Address for Service.

9. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

10. That by not later than 5.00 pm on Tuesday 8 September 2009 the father undergo a supervised test, by urine or blood sample, for the detection of use by him of illicit drugs.

11. That by not later than 4.00 pm Monday 14 September 2009 the mother file and serve details of therapy or treatment undertaken, or proposed to be undertaken by her, for the ‘significant anxiety’ which she has been assessed as suffering by Dr W, psychologist, in the report dated 4 September 2009.

12. That the father spend time with the child D today in the precincts of the Court under the direction of Ms F between 4.30 pm and 5.15 pm.

13. That the father spend further time with the child D as may otherwise be agreed between him and the mother from time to time and confirmed in writing.

14. That in the event that the father wishes to spend time with the child D in Tasmania between now and the interim parenting hearing, he provide the mother with not less than 14 days notice in writing (via their respective solicitors) of the date upon which he will be in Hobart. After 2 October 2009 this matter may be listed before me for determination in relation to such interim time in the event there is no agreement between the parties and/or the independent children’s lawyer in relation to same.

15. That not later than 7 days prior to the relisting of this matter for an interim determination and following the issue of the parent and children’s assessment the independent children’s lawyer publish to the parties his or her preliminary view of what interim orders ought to be made.

IT IS DIRECTED:

1. That my reasons for judgment this day be transcribed and when transcribed copies be made available to the parties.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER:

1. That each party is at liberty to cause subpoena to produce documents to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrars Weidmann or Riddiford for the return of subpoenae.

IT IS FURTHER ORDERED:

1. That if it is not able to be agreed between the parties that the father spend some time with the child at the Melbourne Registry of the Court on 20 October 2009 the matter can be listed for mention before me on that day.

2. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:    HBC 484 of 2009

MS FROBISHER

Applicant

And

MR MACKIE

Respondent

REASONS FOR JUDGMENT

ex tempore

Introduction

1. This matter comes before me in the judicial duty list. The proceedings concern the child, D, born in January 2009.  The father resides in Victoria and the mother and child have resided in Tasmania since 28 February 2009.  The matter involves allegations made by the mother of physical and verbal abuse of her by the father.

2. In her initiating application, the mother sought sole parental responsibility for the child, that the child live with her in Tasmania and that the father have such time with the child as determined by the court.  She also sought various orders regarding the father’s behaviour including an order restraining the father from consuming alcohol or illicit substances prior to or during any time spent with the child.

3. The mother’s primary position today was that an independent children’s lawyer ought to be appointed and the proceedings should otherwise be adjourned for further clarification of evidence; namely the production of independent records by way of subpoenae. 

4. The father’s position was that he seeks the return of the mother and the child to Victoria so that he can commence spending regular time with the child in Victoria. The father wants to see the child as much as possible but did not seek to address me in opposition to that time being supervised.  I do not take that as any concession on his part as to the need for supervision.  The father does not oppose an independent children’s lawyer being appointed; nor does he oppose undergoing a drug test.

The current proceedings

1. Proceedings in this court were commenced by the mother who filed an application on 3 June 2009.  After an unsuccessful attempt of service on 24 June 2009, the father was served with the mother’s application on 3 July 2009.

2. The father appears on his own behalf, although he anticipates he will be represented by a legal practitioner by the next return date. 

3. On the first return date of the proceedings, being 13 July 2009, the father was represented, but I gather had been short-served.  Proceedings were adjourned until today and the father was to file material by 28 August 2009.  The father filed a response and affidavit on 4 September 2009, although prior to that, the solicitors for the wife had received unsealed documents.  The father sets out extensively in his affidavit what has impeded him from coming to court to take a more proactive approach. 

4. The mother has attended the precincts of the court today, as has the child, but she has not entered the courtroom.  The court was informed that she would be adversely affected and suffer significant harm if she was required to be in the same courtroom as the father.  Her sister, R, has sat in and the mother is being represented by Ms Chandler, solicitor.

Background

1. In brief, the mother and father met in early 2007.  Prior to the child’s birth, the mother was employed on a contract basis by the Victorian Government, earning approximately $46,000 per year.  She is 40 years old.  The husband is 26 years old and is employed as a tradesman.

2. The parties had an on-again off-again relationship, during which the mother became pregnant.  She considered not proceeding with the pregnancy, but ultimately decided that she would do so.  During that time, she sought some assistance from a psychologist in Melbourne. 

3. The parties’ son, D, was born in January 2009.  The mother deposes that the relationship with the father was very strained at that time.  The parties were living in Melbourne.  The mother was living in rental accommodation in a south-eastern suburb of Melbourne.  Following the birth of the child, the mother was assisted by the father’s parents, to the extent that she moved into their home in the north-eastern suburbs, where the father also lived. The father deposes to having had misgivings about the mother living in his parents’ home.

4. Most of the mother’s family of origin is in Tasmania and is constituted by her father, her step-mother and three sisters.  Another sister, R, resides in Melbourne in the accommodation which is leased in the name of the mother. 

5. The parents ceased to reside in the one residence, being the home of the paternal grandparents, on 28 February 2009.  The separation followed on a number of alleged physical and sexual assaults and undesirable conduct against the mother, which are denied by the father.  The mother left Melbourne and came to Tasmania.  The mother says that she proposed to travel to Tasmania for six weeks to two months, but during that time, resolved that life would be better for her and the child if she remained permanently in Tasmania.  R began residing at the mother’s rented premises in south-east Melbourne. 

6. Currently, the mother is in rented accommodation in Tasmania.  She receives approximately $813 per fortnight by way of Government subsidies or a pension and $134 a fortnight by way of child support from the father.  The court has little information about the father’s financial position. 

Family violence allegations

1. The mother filed a Notice of Risk of Child Abuse or Family Violence and an affidavit sworn 2 June 2009 on 3 June 2009, in which she details two sexual assaults and other abusive conduct by the father.  The mother also makes allegations regarding the father’s drug and alcohol abuse.

2. The father denies all allegations of violence by him directed at the mother or the child; he denies that he abuses alcohol or illicit substances.

3. The first instance of sexual assault was alleged to have occurred whilst the mother was pregnant.  The mother states that the father came into her bed and demanded to have sexual intercourse with her, touching her breasts. The mother resisted, however she eventually masturbated him as he would not relent and she was exhausted.

4. The first night the child was discharged from hospital following the birth (which would have occurred in mid-January) the father returned home in an inebriated state and entered the mother’s room, where the baby was sleeping in a cot, holding a bottle of alcohol.  He proceeded to swear and become aggressive towards the child and the mother.  The father left the room after an intervention by the paternal grandmother.

5. The second allegation of sexual assault relates to 15 February 2009.  At approximately 3 am, the father again returned home in an inebriated state and entered the mother’s room.  The mother states the father lifted her up against her will and carried her to her bed, where he stripped himself naked and pinned her down.  The mother states that she refused and cried, but did not scream or shout as she did not wish to wake the baby.  Eventually, the father got up to leave, but grabbed the child out of his cot and took him to his room.  The mother deposes that she was unable to move due to her terror and that she feared for the child’s life.  About 15 minutes later, the baby began screaming and the father returned him to the mother.  The father initially appeared to have calmed down, but within minutes again became aggressive, telling the mother whilst she was breastfeeding that she was ‘stupid and that “You’ve only got him ‘cos he’s breastfeeding.  As soon as he’s not I’m going to take him to stay with me and you can fuck off!”’

6. The mother states that several days before she left for Tasmania, the father returned home in a dishevelled state apparently under the influence of drugs and reported to the mother that he had assaulted a person.  The mother deposes that she was extremely frightened for her and the child’s safety, and consequently the paternal grandparents allowed her and the child to sleep in their bedroom whilst they slept on arm chairs in the lounge-room outside the bedroom.

7. The mother also gives evidence of the father behaving in a manner which caused her to be fearful and suffer pain throughout her pregnancy.  The mother states that she suffered from extreme pelvic instability and had to use crutches. The father would not assist her up or down the stairs; refused to drive more slowly or carefully; would stretch out on her couch forcing her to sit upright when she was in pain; and deliberately placed items on the floor where she could not reach them.  The father’s evidence was that he attempted to be helpful during the pregnancy but that the mother would refuse his help.

8. At paragraph 47 of Annexure A of the mother’s Notice of Risk of Child Abuse or Family Violence, the mother states that the father was not violent towards her other than in relation to demanding sex, but that he was emotionally abusive, frequently saying hurtful things such as that the mother is stupid or that she had fabricated the pain she felt during pregnancy.

9. The mother states that the father was generally aggressive and inappropriate with the child, yelling at the child and referring to him as ‘the little fucker’ and ‘the cunt.’

10. Approximately four weeks ago, the mother reported the alleged sexual assaults to the Victoria Police.  The court was not told what, if anything, has happened in relation to those reports, whether the father has been questioned or is likely to be charged. 

11. The mother went to see a psychologist, Dr W, who has completed a report.[1]  The report is largely a rehearsal of the mother’s instructions about the history of the matter and some brief comments about her psychological well-being.  Dr W describes the mother as suffering from significant anxiety, which appears to stem from the abusive relationship she has experienced with the father.  He states that it appears that ‘this abuse has had a profound effect upon [the mother] and her psychological well-being.’

    [1] At page 5 of the report, Dr W refers to the mother having seen him in interview on 21 November 2007.  This was well after the parties had commenced a relationship but also well before the child was conceived.  It is stated from the bar table by the mother’s practitioner that that date is an error.

The legal principles

1. The court must apply Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental responsibility) Act 2006, following the legislative pathway as set out by the Full court in Goode & Goode[2], a decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006. 

   [2] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422

2. Before setting out the steps in an interim hearing, the Full Court in Goodes’ case acknowledged some comments of a previous Full court in Cowling’s case (1998) FLC 92-801, as apposite. It acknowledged that the procedure for making interim parenting orders will be an abridged process where the scope of the enquiry is ‘significantly curtailed’ compared to the ultimate hearing. It said (at paragraph 68):-

   …..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 would 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.

3. In observing that there are passages in Cowling that do not sit comfortably with the Act as amended, and must be re-considered in the light of changes to the Act, the Full Court then noted (at paragraph 72) that:-

   …..it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.

4. As to status quo, it continued:-

   …..where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. 

5. The Full Court the said (at paragraph 73):-

   That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

1. It is clear that I must take all relevant factors into account in my determination of whether to adopt a regime of restricted and supervised time between the father and the child, as is sought by the mother; and my determination of whether the child should be returned to Melbourne or permit the mother to retain him in Tasmania.  An examination of the evidence, once it has all been gathered, may lead me to conclude that the child is well settled in Tasmania.  Nonetheless, permitting the child to live in Tasmania necessarily limits the frequency and duration of the time he is able to spend with the father who is based in Melbourne.  Ultimately, the enquiry will be directed to finding the result which is in the child’s best interests.

Application of the law to the facts of the case

1. This is not an interim hearing which will determine parenting orders that are to remain in force between now and a final hearing.  I wish to progress the matter expeditiously and make orders which provide for the father to have appropriate time with the child.

2. The mother’s fears about the father’s behaviour pre-dates the pregnancy and the birth of the child.  The father’s material, such as it is, is not specifically responsive to the mother’s evidence.  The paternal grandmother has provided an affidavit supportive of the mother’s case.  The evidence of the paternal grandmother, as with all of the evidence currently before the court, is untested and I treat it accordingly.  However, I also take into account that the evidence of the paternal grandmother is evidence of which the mother is aware and material upon which she believes she can legitimately take into account when formulating her position and deciding how the relationship between the father and the child should progress.  

3. In relation to the need to protect the child from physical or emotional abuse, without pre-judging the case, there is enough evidence to satisfy me that the mother’s anxiety levels are high and the allegations of abuse substantial. 

4. Other than the mother’s removal of the child from Melbourne when he was six weeks old, the mother does not suggest that it will not be of benefit to the child to have a meaningful relationship with the father.  However, there is a tension between the father getting to know the child and the need to protect the child from harm, either directly or indirectly through the mother.  A further difficulty is how a meaningful relationship may be established having regard to the father having missed almost the first 8 months of his son’s life and currently living remotely from his son.   

5. There is no real experience of the parties having lived together independently of the father’s parents, or of having parented a child together.  The mother and father have little confidence in each other.  They do not trust the motivations of the other.  The mother appears to have confidence in the paternal grandparents, Mrs and Mr Mackie Snr, but that is of no comfort to the father as he is currently estranged from his parents.

6. The paternal grandparents have been of great assistance to the mother since the child’s birth and there is every indication that they would be prepared to be involved in any assessment process.  My view is that their involvement would be very desirable.  The father is not averse to it.  I would hope that it throws light on the parenting dispute but also goes some way to building a bridge between the father and his parents, which would surely be of indirect benefit to the child.

Orders

1. I make orders for the appointment of an independent children’s lawyer and for the parties to attend upon a family consultant for the purposes of the preparation of a Parent and Child Issues Assessment.

2. I have given consideration as to whether the parent and children’s issues assessment could be completed by the father and his parents being in Melbourne and the mother being in Hobart.  It is my firm view that the mother’s involvement in the proceedings must be more immediate than a telephone link-in to the assessment process could afford.  Because I identify a benefit for the child of having his paternal grandparents involved in the assessment process, at least initially, I will require the mother to bring the child to Melbourne for the interview with the family consultant.

3. Fortunately, it can be arranged that the father can spend time with the child this afternoon facilitated by one of the court’s family consultants, Ms F.  The mother was not opposed to this occurring.

4. I make an order that the father may spend time with the child as agreed by the parties in writing.  If an arrangement cannot be made for the father to have some supervised time with the child, the matter can be mentioned to me after 2 October 2009.

5. The father stated that he is prepared to fly to Tasmania some time between now and 20 October 2009 to see the child. I do not know if that will remain feasible.  The mother, for her part, proposes to travel to Melbourne at her own expense once every two months and then every other month at the expense of the father. This demonstrates some insight on her part into the benefit of the father forming a psychological bond or relationship with the child. 

6. The orders I make are largely procedural in nature and they do not involve provision for the father to spend significant time with the child.  In reaching this conclusion, I take into account the competing principles of the need to protect the child from physical or emotional abuse and an assessment of the benefit to the child of having a meaningful relationship with the father.  Accordingly, I have taken a cautious approach in determining the father’s time with the child.  The forthcoming involvement of an independent children’s lawyer and a family consultant will provide a broader perspective on the issues.  

7. I am satisfied that the orders I have made are in the child’s best interests.

8. I will make provision for an interim hearing, on the merits of the case, at the mention on 6 November 2009.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  16 September 2009