GALLEGO & MACKWETH

[2015] FamCA 412

FAMILY COURT OF AUSTRALIA

GALLEGO & MACKWETH [2015] FamCA 412

FAMILY LAW – CHILDREN – INTERIM ORDERS –Best Interests – Where the father seeks supervised time with the children – Where the mother alleges domestic violence by the father – Where the children have expressed fear of the father and gave evidence against him in criminal proceedings – Where it was submitted by the father that the Court and the single expert would be assisted by the children spending supervised time with their father and coming to terms with their fear before the preparation of the single expert report – Where the Court gave the greatest weight to the protection of the children from further psychological harm – Orders made dismissing the application.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gallego

RESPONDENT: Mr Mackweth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid, NSW

FILE NUMBER: SYC 3015 of 2012

DATE DELIVERED: 2 June 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gilles

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Taylor & Scott Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the application of the father contained in his Amended Response to an Application in a Case filed on 30 April 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallego & Mackweth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3015 of 2012

Ms Gallego

Applicant

And

Mr Mackweth

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Gallego (“the mother”) and Mr Mackweth (“the father”) are the parents of two children: D born in 2006 (“D”) and B born in 2009 (“B”). The parents separated in 2011, the children living with the mother after separation, and there are parenting proceedings on foot which have not yet been heard.

2. The application presently before the Court is the father’s application to reinstate an arrangement whereby he spends time with the children, his time having been suspended as will be explained. The mother opposes the application and asks the Court to continue the current orders whereby there is no direct contact between the father and the children.

3. The children are represented by an Independent Children’s Lawyer (“ICL”) who also opposes the father’s application.

4. The present proceedings have their genesis in an incident which took place on 4 April 2014. On any version of events, the father entered the mother’s home and there was a serious altercation between the father and the mother in the early hours of the morning, where the children witnessed their mother being injured. There is a dispute between the parents about the nature and extent of the mother’s injuries but it is sufficient to say, for the purpose of these proceedings, that photographic evidence establishes that the mother suffered injuries to her face including to her eyes.

5. For the purpose of these proceedings it is conceded on behalf of the father that the children are afraid of him.

6. On the application of the mother, on 12 August 2014, orders were made suspending the time the children had previously spent with their father.

7. The father was charged with offences arising out of the incident on 4 April 2014. Those charges came before the District Court of New South Wales in a jury trial and, after a hearing which lasted for nine days, in which both of the children were cross-examined by Senior Counsel for the father, the father was acquitted.

8. The father now seeks the reinstatement of time with the children. Specifically he asks the Court to make orders which would provide for supervised time with the children, for a period of four weeks for three hours each week, and then for a further period of two months, for six hours each week. On behalf of the father it was submitted that the appointment of an experienced professional supervisor would be sufficient to protect the children from any harm which it was perceived might arise from their being brought into contact with the father of whom they are afraid. It was further submitted that this arrangement would have the positive advantage of allowing them to experience him as a loving and positive figure.

9. Orders have been made for a report to be prepared by a single expert, Dr R, for the purpose of the final proceedings.  Dr R is a Child and Family Psychiatrist. On behalf of the father, it was submitted that both Dr R and, ultimately, the Court, would be assisted by the children having come to terms with their fear of their father before they see Dr R.

10. Dr R will see the family in July 2015.

11. Tendered in evidence for the purpose of the proceedings was the transcript of the children’s Record of Interview given on 4 April 2014 with police. Also tendered was the transcript of the proceedings in the District Court of New South Wales, including the transcript of the cross-examination of each of the children. For the purpose of this application it was conceded by counsel for the husband that, although there were numerous occasions upon which the children’s oral evidence and their Record of Interview differed, the children did not in any way recant their evidence that on 4 April 2014, in the early hours of the morning, their mother was assaulted by their father.

12. It is the father’s case that, if the children express any fear of him, it is not because of what they saw or heard but because their mother has actively sought to influence them and to instil fear in them.

13. It is not possible to determine whether the children’s fear of their father has been exacerbated by their mother. It is possible that their fear arises both from what they witnessed and from what their mother has told them.

14. On the father’s application the Court is required to balance, on the one hand, the benefit to the children of having a meaningful relationship with both of their parents and, on the other, the need to protect the children from psychological harm through being exposed to a parent of whom it is conceded they are fearful. In the father’s case it is suggested that this should be done now, and without the benefit of expert evidence.

15. There is a significant difference between the evidence of the mother and the evidence of the father in relation to what happened on the night of 4 April  2014. These are interim proceedings. The evidence is untested and it is not possible, in these proceedings, to determine what happened. However, some assistance is provided by the psychologist, Ms S (“the psychologist”), who was appointed to provide counselling for the children as part of the victim’s compensation claim which has been made on behalf of the children.

16. Her records and notes were produced on subpoena and tendered in evidence.

B

1. B first saw the psychologist on 31 May 2014. The notes recorded:

   [B] acknowledged that a “terrible thing” happened to her. She reported her father was “wearing a mask, came to our room and blinded my mum”. She said that “he tried to throw her (mother) off the balcony but stopped when my brother came in”. She further stated that she does not sleep by herself as she fears “something bad will happen to my mother”.

2. On 7 June 2014 the psychologist recorded:

   She recalled another incident whereby her father said “can you sign the paper?, mum said no, dad got angry, carried mum and smashed her on the wall, mum fell in the ground and hurt her head.  Felt scared and sorry for mum.”

3. On 5 July 2014 the psychologist recorded:

   [B] spoke about and drew various feelings. She identified that she felt ‘angry, shocked, sad’ when her father physically assaulted her mother. She further spoke about ‘dad asking me, do you want me to bash your mother, dad sings song mum’s a monkey song, dad says your mum is lieing’ (sic). She spoke of these incidents with her father makes her feel ‘sad and angry’. She spoke of feeling ‘shocked’ when her father ‘was blinding my mum. I was slapping his back to stop, when I screamed he stopped’.

4. On 26 July 2014 the psychologist recorded:

   [B] spoke of having ‘nightmares’. She identified the nightmares as ‘my dad gets in the room and hitting mum’, and another incident ‘my dad pushed my mother’s head on the wall”. Writer noticed [B] got up and physically showed how her mother was held and pushed against the wall. [B] further spoke about feeling ‘sad and scared’ in the above mentioned incidents. She spoke of feeling ‘my heart gets faster’ when speaking about her father entering the room and hitting her mother she stated her hands were ‘strong, I kept on hitting my dad to stop’. She further identified my ‘legs was wobbly when my dad was hitting mum on the wall’.

   Writer observed [B] behaviour changed as she began scribbling on the table instead on the paper and drew a line on the wall. Writer verbalised the change in behaviour. [B] identified she felt ‘angry with dad for what he did’. [B] was given the opportunity to speak to the chair pretending her father was sitting in order to facilitate expression of her feelings. [B] reported she felt ‘nervous’, however later spoke to the chair whilst holding the writer’s hand, stating ‘I don’t like what you do’.  At the end of the session, before she left the room she ‘hit the chair’.

5. On 30 August 2014 the psychologist noted:

   … she [B] identified triggers resulting in being anxious, ‘mum coming home late, when mum goes somewhere without me, goes alone without me, goes looking for someone without me’. She further acknowledged she was triggered by the above mentioned situations as she feared ‘my dad will hurt my mum and she will be dead.’

6. On 13 September 2014 B spoke about being fearful of going into a room by herself.

7. On 27 September 2014 B told the psychologist that she worries, “when door bell rings I think it is daddy”.

8. On 22 November 2014, after the mother had unsuccessfully made an application to the Court for permission to take the children on holidays to the Philippines, the psychologist recorded:

   [B] spoke of feeling ‘sad’ about not being about (sic) to go to the Philippines. She stated her brother was ‘angry’ and mother was ‘frustrated’ with the outcome of the court. She further stated that the ‘judge is scared of our father and that’s why we are not allowed to go to the Philippines’.

   It will be noted that at the time of this counselling session, B was five and a half years old.

9. On 20 December 2014 the psychologist recorded:

   [B] spoke about wanting her mother to remarry. She reported she wanted ‘to have a dad’.  She spoke of wanting a father with the following qualities:

   ‘Normal dad does not hurt anybody’

   ‘Kind’

   ‘Helpful with my assignments’

   ‘Loving. He would kiss my mummy every time; love her, if anybody tries to kill her he would save her’

   She further spoke of an incident whereby ‘my dad took a broom and was sweeping my Tatar (paternal grandmother) and shouting at her. I was four; I started hitting him and pulling his shirt. She was on the phone to my aunt (paternal aunt). Taitar (sic) started crying and went outside, I followed her. Dad pushed Taitar (sic) and she fell on the ground’.

10. On 14 March 2015 B spoke to the psychologist about her experience of being cross-examined in the District Court of New South Wales.

11. On 11 April 2015 the psychologist noted:

    [B] spoke about her fear of her father would ‘hurt mum again’. She spoke about her experiences at court. She reported ‘[senior counsel for the father] was very mean’.  He said ‘did Tata (sic) fall over the fence; I said no dad pushed her. He said I was lieing (sic) and that mum told me to lie’. ‘Daddy was lieing (sic) in court and he got out of court’. ‘I am worries (sic) dad will come again and destroy mum’. She spoke of coping by ‘listening to calm music, sleeping with mum, having my toys with me to calm my brain’. She spoke of having nightmares which involved ‘dad catching me, I fell off the bed afterwards.’

    Writer observed [B] asked ‘what will we do if dad comes in here?’ She responded by stating ‘[D] and me will hide, mum will run away, you can call the police’.

12. On 25 April 2015 the psychologist noted:

    [B] spoke about her fear of living with her father. She reported she was ‘scared my mother will be killed by my dad’.  She attributed her fear was due to witnessing domestic violence perpetrated by her father towards her mother. She spoke of increased fear at present ‘because my dad won and my mum lost’ when identifying the outcome of the recent court case.

13. On 2 May 2015 the psychologist and B practised exercises to manage B’s fears about her mother being killed by her father.

D

1. D’s first session with the psychologist occurred on 31 May 2015. D told the psychologist that he did not want his mother to know what he and she talked about.

2. On 7 June 2014 the psychologist recorded inter alia:

   He identified another incident whereby he recounted the time his father “broke into the house, carried mum and tried to throw her off the balcony railing. Mum screaming D, [B]. I woke up. “He was wearing a toxic mask and gloves. Blood stains on the wall, mum had bruises, eye bleeding, face covered with blood”.

   He further added “nights I have dreams dad will come in and grab mum, I wriggle to keep myself warm”. “Dad had guns, 3 to 4 I’ve seen them”

   He identified another incident “dad throwed (sic) mum on the wall, dad pushed mum she hit her head on the wall, she had to relax in hospital. I heard bam bam boom, I thought it was the cargo train or small clothes line crashing again, then I heard mum scream”.

   Upon reflecting on the above mentioned incidents D reported he felt “sad mum and dad split up”, “angry incase (sic) mum got hurt”, “scared dad comes back and injures mum again”. “Last four years I have not been happy, I got happy when I got a sky model plane from [Mr T]” (family friend).

   Writer observed his affect changed to anger when he began speaking about incidents his mother being hurt. D acknowledged he would ‘get angry’ at home when I think about how dad hurt mum’.

3. On 5 July 2014 the psychologist noted:

   [D] was able to draw and identify various feelings. He spoke about aspects of his life that made him feel ‘happy, sad, angry, shocked’. He spoke about feeling happy about his visit to Korea. He identified he was ‘angry’ about ‘my dad coming into the house at midnight and hitting my mum.’ He further described wanting to ‘whip’ his father, ‘throwing him out of the plan into the Atlantic ocean without a jet pack’. He acknowledged he felt angry about his father assaulting his mother.

4. On 26 July 2014 D told the psychologist: “I get angry, I don’t know why”.

5. On 9 August 2014 D requested that his mother be present during his session with the psychologist. The psychologist noted:

   [D] spoke about the incident whereby his father ‘came into the room we were sleeping in and tried to throw mum out of the balcony’. He further spoke about he (sic) ‘start talking other things, talk fast when it is hard to talk about things’. He identified that he would ‘go to the toilet’, change the topic when he feels fearful.  He spoke of being ‘scared’ that my dad will kill my mum’. He spoke of wanting to be with his mother at all times, as he fears she would be harmed. He acknowledged that he did not like his parents separated, as ‘other children’s parents are together’.  He reported that ‘if my mum is with my dad he would kill her’. He said that his father ‘has hit me on the head with sticks’.  Writer noticed that he wrote the name his father calls him ‘fuck [D]’, as he did not want to verbalise it. He further spoke about his ‘eye going woozy and I can’t see properly when I get scared’.

6. On 30 August 2014 the psychologist noted:

   [D] said ‘I don’t want to be here, I am sleepy’.  He later disclosed that speaking about ‘this stuff, what dad did make me remember, I don’t want to remember’.  He further stated that he wanted his father ‘to go to jail’ and he believed ‘there is a 50 % chance of him going to jail because he is on bail’. [D] stated ‘I would like to see my father in jail’.  He further spoke about his fears of ‘my father breaking into the house and taking me, hurting my mum’. He identified that the house has ‘CCTV cameras’, however spoke of ‘dad will get me’. He identified he was fearful of his father as ‘he will hurt my mum’. Writer observed that [D’s] concentration was limited and he was rolling around the floor.

7. On 20 September 2014 the psychologist noted:

   [D] spoke about his relationship with his sister. He spoke of her being ’cute, funny, humiliating’. He identified that his sister ‘is like my dad’, ‘she attacks me, fights with me’. He further stated ‘Dad likes [B] more’.  He said that ‘mum like [B] more than me, she sleeps with her , buys her things’. He further stated that he does not like [B] ‘very much’ as she reminds him of aspects of his father. [D] spoke at length about how he fights with her and ‘hits her’.

8. On 27 September 2014 the psychologist noted:

   [D] identified that he continues to find it difficult to challenge his negative cognitions. He spoke of his fear of his father ‘entering the house and killing everyone, more life at stake’. He spoke of ‘seeing my father on the bus when I was going to the city’. He acknowledged he was ‘sure’ of seeing his father, however identified that it was a significant possibility it was his father.

   Cognitive challenging continued. Identifying facts about reasons he was currently safe was explored. He identified the following, ‘I don’t see my dad, his family, I have security in the house, police, I have mum’.

9. On 25 October 2014 the psychologist noted:

   [D] spoke about his three primary fears. These included, ‘if dad attacks mum’, ‘brain freeze if all bad memories comes back. I loose all good feelings and memories’, ‘dad crush me and the family’

   Mother was in the session. Writer observed [D] acknowledged it was ‘hard to speak about’ the memories. Writer observed he began rolling on the floor and changing topics.

10. On 22 November 2014 the psychologist recorded:

    [D] spoke about not being able to travel to the Philippines as his father ‘not allowing it’.  [D] spent most of his session venting his feelings and thoughts about not being able to travel overseas. He stated that his father was ‘stupid, mean’, ‘like [B] more because she is the same colour as him, ‘always used to shout at me’, ‘said he does not trust me’. He spoke of wanting to ‘kill him using a tasser (sic) or gun’.

11. On 29 November 2014 the psychologist noted:

    “D spoke at length about wbating (sic) to ‘kill my dsad (sic)’, ‘he did not allow us to go to the Philippines’. He spoke of wanting to take a photo of him ‘hang on the clothing line and stab it with a knife’.

    Ways of problem solving was explored as apposed (sic) to being constantly angry. Wrtier (sic) acknowledge his anger, however ways he can feel better was explored using problem solving. He stated that he has the option of communicating his feelings and thoughts to his lawyer, ‘letting mum handle it’

12. On 6 December 2014 the psychologist noted:

    [D] spoke about wanting to ‘kill my father’ as he is unable to travel to the Philippines. He vented his anger during most part of the session. Writer observed he drew a picture of his father and used a pencil to rip the paper part (sic).

13. On 20 December 2012 the psychologist noted:

    D spoken (sic) about the alarm at his residence ‘going off’. He stated he was ‘scared’, ‘I thoughts (sic) my dad had got in. I ran to the CCTV camera room and saw it was my relative’.

14. On 14 March 2015 the psychologist noted:

    [D] spoke about feeling ‘scared’ about attending court case. He spoke about the possible questions he may be asked. He stated that he was ‘angry’ and ‘want everything to stop. He was tearful during the latter part of the session when he spoke about the length of time the court case was taking.

1. On 11 April 2015 the psychologist noted:

   [D] spoke about his father (sic) lawyer ‘confusing me’, ‘he did not believe me’, and he said I was lying’. He spoke of his fear of his father ‘killing me and my mum’. He identified that ‘it’s hard to talk about what happened at court’. He began speaking about his friends. He identified that he would like to focus on his friends rather than speak about court at present. Rest of the session was spent on focusing on his friendships.

2. On 25 April 2015 the psychologist noted:

   [D] spoek (sic) about feeling ‘angry’ about his father ‘winning the case’. He spoke at length about not wanting to live with his father as he was fearful ‘he would kill me’. He spoke at length about ‘judge not believing me, that’s why my dad is not in jail.’

3. On 2 May 2015 the psychologist noted:

   [D] speok (sic) about at length about his father ‘killing [U]’. He spoke at length about the dog, [U] and attributed his death to his father ‘killing him’. He spoke of his fear of ‘my dad coming into our room, taking me and my sister, killing my mother’. He identified his thoughts were due to witnessing his father ‘try to kill my mum in our room’. Writer observed [D] became angry and began saying that he would not live with his father. He further spoke of wanting to inform his lawyer about not wanting to live with his father.

4. In the course of submissions the ICL, without objection from counsel for the father or counsel for the mother, told the Court that she had spoken to the psychologist within the last few days and that the psychologist did not recommend that the children’s time with the father should be resumed.

5. On 19 May 2014 B was interviewed by officers of the Department of Family and Community Services. In the course of the interview the departmental officer said to B “Tell me about fun with dad because I wasn’t there. What are you doing?” and B replied”

   Playing, carries me, piggy back me. Even when his back hurts, he still carries me. He is very brave. Mummy was a little bit scared when dad shocked mum. When he tried to kill her. She was a little bit worried. Mum had bruises all over her body.

6. D was also interviewed by the Department of Family and Community Services on 19 May 2014. In answer to the question, “Is there anything that worries you?” D replied “dad”. When asked “What about him?”, D said:

   There’s trying to find out who broke into our house. There’s no balcony, inside there’s curved bit at the top. My bedroom is here. Dad broke into my bedroom two o’clock in the morning. We were moving to a new house. They think he snapped the lock open. Dad broke in. It was a good night, we were moving the next day and that night he came to the house. Mum wasn’t in her bedroom because full of books. Dad rummaged in and he was wearing a mask that looks like this – with two holes. Dad thought there was something dangerous. He had a toxic mask.

7. D went on to say:

   She spoke to dad about how to make the world better. He was about to throw mummy over the balcony. He made mum write a note; I want you to help me take the pot plants. That was last thing and then he left. They think this is one thing and he can use. A long time ago, 2011 he broke a door open. He actually kicked it open. It shocked me.

8. It is not clear from the file produced by the Department of Family and Community Services why it was thought necessary that the children be interviewed at this time particularly having regard to the fact they are seeing a psychologist, that they are to see Dr R in July, and that there are family law proceedings on foot.

9. The relationship between the father and mother, both during the marriage and after their separation, has been characterized by numerous allegations of domestic violence. The father asserts that the mother has made complaints to the police about him on ten occasions approximately and those complaints have not been substantiated. There is some support for the mother’s contention that the father has acted in a violent manner in the notes which are produced by a counsellor who saw both of the parties. In August 2010 the father was interviewed by Dr V who noted that the presenting issue was domestic violence, both emotional and physical. In relation to the father, Dr V noted that the father had told her that he grew up in a household where he observed his father’s abusive behaviour and he carried this into his marital relationship.

10. It is not possible, within the limited confines of an interim hearing, and without expert evidence, to make any assessment of the extent to which the children’s fear of their father has its genesis in their own experience of his behaviour, whether that fear has been exacerbated by the mother, or whether both factors are present.

11. Without expert evidence I am not in a position to assess whether or not the reintroduction of the children to their father with the assistance of an experienced supervisor, would, as the father submits, be a positive experience for them once they got over their initial fears, or whether the experience would further damage the children psychologically. 

12. Having regard to the things which the children have said to the psychologist I cannot assume that the children would easily overcome their fear of the father and I cannot assume that the experience of supervised time for them will inevitably be positive. The experience may be overwhelmingly negative.

13. It cannot be in the best interests of these children to put in place an arrangement which could have serious detrimental effects upon them.

14. There is no expert evidence which assists me to come to the view that spending time with the father would bring a positive benefit to the children. Neither is there any expert evidence which assists me to find whether or not spending time with the father would cause them psychological damage, and, if so, how serious that damage would be.

15. As I am required to do by the Family Law Act1975 (Cth), I give the greatest weight to the protection of the children from further psychological harm. In those circumstances, until such time as the Court has expert evidence from Dr R, it is not appropriate to reinstate the children’s time with their father.

16. The father’s application will be dismissed.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 June 2015.

Associate:

Date:  2 June 2015