GAGE & GAGE

[2018] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAGE & GAGE [2018] FCCA 2081

Catchwords:
FAMILY LAW – Parenting – interim hearing – one child aged 9 – application seeking to suspend all time and communication between father and child pending final hearing – supervision by qualified supervision service – allegation father grabbed child on back of neck during supervised visit – subpoenaed video (CCTV) evidence – best interests of the child.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Cases cited:

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93-286

Salah & Salah (2016) FamCAFC 100

SS & AH (2010) FamCAFC 13

Applicant: MS GAGE

Respondent: MR GAGE

File Number: NCC 28 of 2016

Judgment of: Judge Betts

Hearing date: 10 July 2018

Date of Last Submission: 10 July 2018

Delivered at: Newcastle

Delivered on: 10 July 2018

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Foat Roberts Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: Charlestown Law Firm

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. The orders for supervised time made on 20 July 2016 continue. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 28 of 2016

MS GAGE

Applicant

And

MR GAGE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a tragic case, one that requires a judicial determination on a final basis.  It is listed for final hearing in November 2018.

3. The child of the proceedings, [X], is nine years and nine months old. This matter is before me on an urgent basis because the Mother recently filed an Application in a Case on 8 June 2018 seeking to suspend all time between [X] and the Father, and all communication between [X] and the Father, pending the final hearing. 

4. There are Family Report interviews due in just a few weeks’ time with Family Consultant Mr N who prepared the first comprehensive Family Report in December 2016. 

5. By way of background, the Father has been having supervised time with [X] at various locations supervised by “Rekonnect”.  This arrangement was put in place pursuant to consent orders entered into by the parties on 21 July 2016 with the benefit of counsel. 

6. Those interim orders have never been appealed. 

7. The supervised time orders remained in force until 26 June 2018 when the Mother’s Application in a Case first came before me.  On that date, out of caution, I ordered the suspension of the Father’s supervised time with [X] pending the interim hearing.  I did so given the Mother’s allegations as to what had happened between [X] and the Father during the supervised visit at the (location) on 3 June 2018 which alleged events are what caused the Mother to bring this urgent Application. 

8. Pursuant to those orders, the father’s time is supervised by a qualified supervision agency which is inherently regarded as a relatively safe option in terms of promoting a relationship between [X] and the Father as distinct from an order for unsupervised time between them. 

The supervised visit at the (location) on 3 June 2018

1. The parties give starkly different versions of events as to what allegedly occurred at the (location) visit on 3 June 2018.

2. On the Mother’s version of events, [X] was ‘not herself’ when she returned to the Mother after that visit.  She was apparently ‘blank’ in terms of her facial expressions.  The supervisor (Ms K) disclosed to the Mother that the Father had grabbed [X] by the back of the neck during the visit after [X] had been behaving rudely.  Ms K told the Mother that the Father had apparently been angry (at [X]) at the time, and that Ms K had communicated to the father that it was inappropriate for him to behave in this way towards [X].  [X] apparently said to the Mother that the Father had tried to ‘strangle her’ but Ms K corrected [X], pointing out that the Father had grabbed her by the back of the neck not the front of the neck. 

3. The Mother also says that on the drive home in the car afterwards, that [X] told her that she did not want to see her dad any more. 

4. Later that evening, the Mother deposes that she tried to discuss the matter with [X] but [X] did not want to.  Instead the Mother deposes that [X] drew some pictures of what happened and she indicated to the mother that the father had grabbed her throat in a ‘coat-hanger’ type move during the visit and had grabbed her arm and thrown her into a chair. 

5. The Mother was concerned about this event and took [X] to see the Police about the matter on 4 June 2018.  It appears that the Police initially contemplated applying for an Apprehended Violence Order against the Father but that they later chose not to go down that path, nor have they brought any criminal charges against the Father arising out of this event. 

6. The Mother says that she took [X] to a GP on 6 June 2018 at which time [X] had a sore neck and a sore arm - with a possible lump under her skin which was thought to be a bruise, perhaps relating to the Father’s alleged manhandling of her on 3 June at the (location). 

7. The Father’s version of events is set out in his affidavit and essentially he deposes that [X] was more quiet than usual at the commencement of that visit; that throughout the visit [X] was behaving in a challenging and generally rude way.  He gives numerous instances of her alleged rude behaviour towards him. 

8. He does admit in paragraph 13 of his affidavit that, at one point when he thought that [X] was about to run off again:

   I took hold of [X] by her hand and said to her words to the effect of, “Stop, [X].”  I then placed my hands on her back and we walked over to the seats.  When we reached the seats, [X] flopped down into the chair with her arms crossed.

9. The Father essentially says that nothing untoward occurred and that at the end of the visit, [X] gave him a kiss and said, “Bye, daddy.  Love you.  Miss you.” 

10. The supervisor’s version of events has been admitted and marked as exhibit “A” in the proceedings and - broadly speaking - it does not much assist the Mother’s argument. 

11. The supervisor’s version of events corroborates that the child was behaving somewhat rudely to both the supervisor and the Father during the visit.  The supervisor does however say that the Father confronted [X] at one point in relation to her behaviour.  She says that his voice became quite loud, that he stood up and walked after [X], placing his hand:

    …over her hair on the back of [X]’s neck.  [X] let her head fall back, looking back at the ceiling.  [X] gave Mr Gage [the Father] a look, rolling her eyes back (staring him down).  Mr Gage said “Listen”.  [X] stood up while Mr Gage removed his hand saying, “Don’t look at me like that, [X].  Your mother might let you get away with it, but while you’re with me you’re under my rules.”  He then told her to go and sit down.

12. The supervisor corroborates what the Mother says in the sense that [X] later accused the Father of choking her when talking to the supervisor.  The supervisor challenged [X] about the alleged choking and told him that her Father’s hand was on the back of her neck “and it’s not okay”. 

13. Notably, at the conclusion of the visit, the supervisor says that [X] chased after the Father - grabbing/wrapping her arms around his back, giving him a cuddle. 

14. I have in the course of the hearing today referred to the subpoenaed Rekonnect notes which were admitted and marked as exhibit “B” in the proceedings.  These notes show that the child demonstrates a mixture of affectionate behaviours towards the father and at times defiant behaviours - much as occurred on 3 June 2018. 

15. It is also sufficiently clear from those notes that the child is well aware of the conflict between her parents as on one occasion she falsely accused her Mother of behaving neglectfully towards her - which she quickly recanted when the supervisor challenged her about it. 

16. In the course of the hearing, I have viewed the subpoenaed video (CCTV) evidence from the (location), with some technical difficulty along the way.   It is fair to say that there are two (2) separate events that are captured on the (location) CCTV footage. 

17. I should add that the proceedings were adjourned over specifically to today so that the parties’ legal representatives could obtain that CCTV footage.  There are two (2) relevant events that are depicted.  The first occurs at 3.28 pm at which point, while standing at a particular exhibit in the (location), the Father starts stroking [X]’s hair and is apparently playing with her pigtail.  It then appears that he pulls her hair (or her head) back quite suddenly - so that his head is directly above hers. 

18. I assume he said something to her at this point but there is no direct evidence about this that I can see, and in any event, what he did or did not say to [X] at that time is apparently in issue.  Though not in his affidavit, the Father’s solicitor says to me today from the bar table that in this particular event the Father merely asked [X] if she wanted something to eat. 

19. This strikes me as an unusual way of going about it but it is a difficult matter, if not an impossible matter, for me to making findings as to disputed facts today and I am particularly loathe to attempt to unravel the competing allegations in this case in circumstances where I can conduct the final hearing in four (4) months’ time and determine the matter once and for all - additionally with the benefit of an updated Family Report. 

20. I should add for the record there is also another event on the CCTV footage at 4.05 pm wherein the father apparently strokes [X]’s hair but I do not know that this event takes the matter very far.  Mr Foat who has argued the matter for the Mother today submits to me that it is evidence of insensitivity from the Father in that, this earlier event having occurred at 3.28 pm, the Father should have stayed well away from the child’s hair in that fashion.  He may be right, but it is a matter for a final hearing.  In any event, the event itself does not strike me as being of any particular significance, certainly today.  Again it is a matter for a final hearing. 

Surrounding context

1. This matter has a tragic and somewhat miserable history. 

2. In the opinion of the report writer,[1] and consistent with the Mother’s evidence, the Father apparently has a long history of anger management and difficulties in that respect. I make no findings about these matters. I merely record them for the purposes of these reasons to say that the report writer had significant concerns about the Father’s anger and that he was firmly of the view that the Father needed to significantly modify his behaviour going forward.

   [1] Family Report dated 30/12/16

3. The report writer also had concerns about the Father in terms of drug use in particular.  I understand that the Father has undertaken some anger management courses or course since then, as well as undertaking apparently an 18 week domestic violence course.  These are matters for a final hearing. 

4. The Family Report also records that the Mother suffers from post-traumatic stress disorder and anxiety apparently related to the previous domestic violence said to have been inflicted upon her by the Father.  She has had counselling in this regard which she apparently found helpful. 

5. The family violence apparently includes an occasion where the Father threw a knife at the Mother, which was witnessed by [X].  Indeed, the Mother says it was [X] who told her when it was time to leave the relationship. 

6. If those facts are proven at this trial, then the Father should hang his head in shame.  The child also recounted to the family report writer significant events of family violence that she claims to have witnessed.  That said, [X] did want to continue to spend time with her father and she clearly loves him.  It may be that she simply wanted any violence or anger from the father to stop. 

7. Again, these are matters for a final hearing, but I want to make clear in making my decision today that this Court abhors family violence and this Court will act protectively for children.  Equally the Court must make clear that this child has a right to a meaningful relationship with her Father to the extent that maintenance of such relationship is in her best interests. 

Analysis of the evidence

1. The evidence pulls in different directions as is often the case. 

2. But the video evidence is not of itself conclusive as to what happened at the (location) and the only independent evidence that I have here comes from the supervisor, although again, the evidence she gives may also be subject to challenge at final hearing. 

3. I have already suspended the father’s time with this child following what occurred on 3 June.  His time with [X] is already greatly restricted by the earlier interim orders entered into by consent on 21 July 2016 when both parties were legally represented. 

4. The restricted time that the Father has with [X] represents a balance that has been struck between, on the one hand, continuing a relationship between the child and her Father, and on the other hand, protecting this child from family violence.  One would hope that to the extent that the Father’s time has already been suspended,[2] that he may learn a lesson from what occurred on 3 June, but that is entirely up to him. 

   [2] By the orders of 26 June 2018

5. As I have said earlier, this Court abhors family violence and its corrosive impact on children and on families.  If the mother is suffering anxiety and/or post-traumatic stress disorder, then I am not surprised that she is very anxious about the supervised time that is occurring between the Father and [X], and I would have little doubt that the child would also be picking up on that anxiety. 

6. The Father may suggest that the Mother is “alienating” the child but again these are matters for a final hearing.

7. I observe that it is also possible that this child is saying to each parent what she thinks that parent may want to hear.  The mother certainly was given a much more dramatic account of the (location) incident by [X] than what the supervisor said occurred.  Further, when [X] was having a supervised visit with the Father in 2017, she made a false complaint about the Mother neglecting her – as set out in Rekonnect’s subpoenaed notes. 

8. The reality is that there is very intense conflict between [X]’s parents and regrettably [X] is now drawn into proceedings in which I have to make a decision as to what is best for her.  I will do so on a final basis in July 2018 with all of the evidence when everyone can fully present their respective cases. 

9. I am mindful of the limits in terms of what I can do at an interim hearing and particularly that I cannot make findings as to disputed facts. 

10. Equally, I cannot ignore allegations relevant to risk merely because their reliability has been put in issue.  I refer particularly to the decisions of the Full Court in SS & AH (2010) FamCAFC 13, Eaby & Speelman (2015) FLC 93-654 and Salah & Salah (2016) FamCAFC 100. I also refer to the decision in Goode & Goode (2006) FLC 93-286.[3]

    [3] See also s60CC(2)(a), s60CC(2)(b) and s60CC(2A)

Conclusion

1. Weighing all of these matters together, and particularly noting the supervisor’s report, I am of the view that it is appropriate at this time to restore the child’s time with her Father on a strictly supervised basis as had occurred previously. 

2. The Father should not interpret this as me condoning him grabbing the child.  Indeed, it may be that in November if the Mother’s case of violence is made out, that I will have no choice but to completely cease his time with [X] on a final basis.  He needs to understand that.  It is not a decision I would make lightly but I want him to take no false expectation walking out of Court today that I will not be regarding family violence as a very serious matter. 

3. Equally I have before me evidence that [X] really loves the Father and wants to spend time with him.  It is a very difficult case but in my view in the interim and pending the final hearing in November this child needs to continue her relationship with the Father and this is the decision I have arrived at today. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  31 July 2018