Garner and Garner
[2016] FamCA 630
•5 August 2016
FAMILY COURT OF AUSTRALIA
| GARNER & GARNER | [2016] FamCA 630 |
| FAMILY LAW – CHILDREN – interim orders – where the father seeks orders for gradually increasing time with the child – where the mother seeks orders for the father to spend supervised time with the child – where there are allegations of family violence – where the mother has tendered audio recordings – where there are psychological and psychiatric assessments of the father – where the parties are in dispute as to a supervisor – where the Court declines to issue an evidence certificate – where the Court does not consider that the father presents a risk – where the father’s time is initially supervised – where continued supervision is dependent upon the report of the psychiatrist. |
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 4AB, 60B 60CA, 60CC, 62G(2), 65DAA, 61DA, 69ZN, 69ZQ
| Janssen & Janssen [2016] FamCA 345 |
| APPLICANT: | Mr Garner |
| RESPONDENT: | Ms Garner |
| FILE NUMBER: | ADC | 4776 | of | 2015 |
| DATE DELIVERED: | 5 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs West |
| SOLICITOR FOR THE APPLICANT: | Alderman Redman Lawyers and Mediators |
| COUNSEL FOR THE RESPONDENT: | Ms O'Connor |
| SOLICITOR FOR THE RESPONDENT: | SE Lawyers |
Orders
That the parties have equal shared parental responsibility for the child B (“the child”) born … 2015.
That the child live with the mother.
That the child spend time with the father each Wednesday and Saturday from 9 am to 12 noon conditional on the father’s time being supervised by the child’s paternal grandparents or each of them subject to the parties having successfully completed an intake process with Mr C (psychologist) whereupon he will thereafter supervise the father’s time for four (4) periods.
That the parties shall share equally in the cost of Mr C undertaking the supervision of the father’s time with the child.
Following the conclusion of the supervised time by Mr C and provided that Dr D will have given a written indication that having listened to the audio recording made 17 May 2015, 19 October and 20 October 2015, there is to be no material change to the report already provided by him, the child shall spend time with the father from 9 am to 1 pm on each Wednesday and Saturday without supervision.
That the father spend time with the child at such other time as the parties may agree.
That handover of the child both at the commencement of the father’s time and at the conclusion thereof shall be at McDonald’s restaurant, Suburb E or at such other place as the parties may agree.
That the parties be restrained and an injunction is granted restraining each of them from approaching or remaining in the vicinity of any place at which they may reside or their separate place of employment SAVE as may be necessary to give effect to the following:-
(a) These orders;
(b)Any agreement between the parties in writing as to the arrangements in respect of the child;
(c)In respect of the parties separate places of employment, as may be necessary arising out of the ordinary course and requirement of their employment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garner & Garner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4776 of 2015
| Mr Garner |
Applicant
And
| Ms Garner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Initiating Application filed 15 June 2016, Mr Garner (“the father”) seeks final orders in respect of settlement of property and parenting orders in respect of B born in 2015 (“the child”). In terms of parenting, the father seeks that the parties have equal shared parental responsibility and that she shall live with the father on a gradually increasing basis such that when the child is five and a half years of age, her care shall be shared.
On an interim basis and until she is 18 months of age commencing 13 October 2016, the father seeks time with her each Wednesday from 9 am to 5 pm and each Saturday from 9 am to 5 pm alternating weekly to Sunday.
By Response filed 15 March 2016, Ms Garner (“the mother”) also seeks orders for property settlement, but in respect of the child considers that she should spend time with the father only as agreed between the parties or as ordered conditional upon him completing an anger management course.
The interim orders provide for the parties to enrol at the Suburb F Children’s Contact Centre and that the father attend upon Mr G, psychologist, for the purpose of therapeutic intervention with respect to anger management and other issues that may be identified.
Orders made by Judge Mead in the Federal Circuit Court on 21 March 2016 are summarised as follows:-
(1)That the parties have equal shared parental responsibility.
(2)That the child live with the mother and spend time with the father as follows:-
·Commencing forthwith on two occasions each week for a period of two hours as may be nominated by Ms H, family consultant, under her supervision and at the joint cost of the parties;
·Commencing 30 April 2016 each Saturday from 9 am to 11 am or such other two hour period as may be agreed conditional on the father’s time being taken at the former matrimonial home and under the supervision of Ms I or Ms J; and
·Each Wednesday from 4 pm to 6 pm or between 9 am and 11 am if notice is given by the father, with such time to be under the supervision of Mr K, Mr L, Dr M or Mr N;
·The time spent between the father and the child under the supervision of the mother’s sister shall be the subject of notation and the notes to be provided to the father;
·The mother shall attend upon Ms O or Ms P for the purpose of psychological assessment;
·The father shall attend upon Mr Q for the purpose of a psychological assessment;
·The parties shall instruct Ms H to prepare a report on the supervised time;
·The parties are restrained from approaching each other or their respective homes, denigrating the other in the presence of the child or permitting any other person to do so.
Further orders were made in respect of interim property issues. The current proceedings are however confined to parenting issues.
By order of 17 June 2016, the proceedings were transferred to the Family Court of Australia and listed before me for argument as to the following interim issues:-
(a)The question of use of voice recorded communications between the parties;
(b)The time that the child should spend with her father during a further adjourned period;
(c)Whether such time should be supervised and if so who should be included as possible supervisors; and
(d)An extension of existing non-denigration injunctions currently in place.
The issues in dispute are further encapsulated in the Amended Application in a Case of the mother filed 29 June 2016 and a Response filed by the father on 4 July 2016.
The Amended Application in a Case seeks orders in respect of audio recordings made by the mother on 17 May 2015, 19 October 2015 and 20 October 2015 as between the parties in particular that they be tendered as evidence and be provided to the father’s psychologist Ms R and Dr D, his psychiatrist. Ms R and Dr D have prepared reports as to the state of the father’s mental health.
In anticipation of a family assessment report either by way of private instruction or pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”), the mother seeks that the audio recordings be provided to the family consultant.
The mother also seeks that the time the child shall spend with the father be between 9 am to 11 am on Wednesday and Sunday of each week and that it be supervised by a person or persons to be drawn from a stated list of supervisors pending the completion of an intake process by Mr C psychologist, who will thereafter be the supervisor at the equal shared cost of the parties.
The mother has secured an interim intervention order which is currently the subject of challenge by the father. She seeks orders of restraint and injunction against the father approaching her, her place of residence or her place of employment, or from approaching within 50 metres of the child save and except for supervised time.
By his Response, the father consents to the audio recordings being tendered as evidence and provided to his psychologist, psychiatrist and any nominated family consultant.
The father seeks an order of restraint that the mother not approach or remain in the vicinity of his residence and that the parties be restrained generally from the following:-
·Assaulting, threatening, harassing or intimidating the mother or the child;
·Denigrating the mother whether in the presence of the child or otherwise;
·Damaging or disposing of any jointly owned property;
·Recording covertly (by any means) any conversations or interactions with the mother or with the child;
·Approaching each other or their respective residents without first obtaining the written consent of the other.
Notwithstanding that there is significant similarity and correlation of the orders of restraint and injunction sought by each of the parties, they appear incapable of agreement.
The orders sought by the father in respect of the time that the child should spend with him is unchanged from the orders set out in his Amended Initiating Application.
Accordingly, of the four issues as defined in the order of 17 June 2016, agreement has been reached in respect of the use of the voice recorded communications between the parties. It is unlikely that the Court will be significantly troubled by the parties separate application for injunctive relief and non-denigration orders. The focus of the interim proceedings therefore centres on the time that the child should spend with her father and whether that time should be supervised and if so, the identity of the supervisors.
Whilst the father rails against an order of supervision, if it was considered necessary then he proposes that the supervisors be members of his family, but in particular to include the paternal grandparents of the child.
The mother insists upon supervision, but does not consider the paternal grandparents or the husband’s brother to be suitable.
BACKGROUND
The husband was born in 1982 and the wife was born in 1983.
The parties commenced cohabitation in either late 2009 or early 2010. The parties resided in a property situate at Suburb S which had been purchased by them prior to the commencement of cohabitation. The parties were married in 2011 and separated on 19 October 2015. Initially the mother and the child remained in the home, but later moved to the home of the maternal grandparents and continue to do so.
Both parties are professionals. The father is currently employed on a fulltime basis, whereas the mother has of recent date been on maternity leave, annual leave and then long service leave.
It is not contentious that the parties were in high conflict with each other for a significant time leading up to separation. The cause of the conflict is in dispute and the conduct of each of the parties to the other is potentially at the heart of their current presentation and attitude. The father contends that following the child’s birth, he became marginalised and considers that the mother attempted to restrict and diminish his relationship with his daughter.
For her part, the mother contends that the father was controlling, engaged in coercive behaviour and at times became physically aggressive.
The mother’s strong opposition to the father spending unsupervised time with the child is based upon her contention that the father engaged in family violence and that he suffers from mental health issues which she considers would place her at risk in his unsupervised care.
The father denies both the allegation that he engaged in family violence towards the mother and the child and the assertion that he has mental health issues which would pose a risk to the child if they were not attended to.
Following separation, the father’s time with the child was limited to one hour each Wednesday and Saturday and always under supervision initially by the mother’s sister. The father considered that the supervision was unwarranted, but also was an unnecessary intrusion given that whoever the supervisors were, they were required to keep notes of their observations of his time.
The father received a short report from his general practitioner confirming that whilst he had been treated for depression, he had responded to low doses of antidepressants and had not presented with suicidal ideation or evidence of more chronic mental illness.
On 4 November 2015, the mother obtained an interim intervention order in the following terms:-
(1)The defendant must not assault, threaten, harass or intimidate the protected persons (the mother and the child).
(2)The defendant must not cause, allow or encourage another person to do anything forbidden by this order.
(3)The defendant is not to damage or dispose of any personal property of the protected persons.
(4)Any firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms forthwith.
(5)For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm including in the course of his or her employment.
Initially the father agreed to his time being the subject of supervision notwithstanding that he did not consider it necessary.
It seems that whilst both parties recognise that the age of the child dictates the broad parameters of the time that she can spend with the father, the mother’s requirement for supervision and the necessary implication that without supervision she may well be at risk in the father’s care, continues to fuel the conflict.
It is also a feature of the proceedings that has seen the involvement by family members of each of the parties. It could not be said that their involvement has assisted to cauterise the mistrust and distress that has now been engendered.
Presumably on the instructions of each of the parties, their solicitors have engaged in a torrent of correspondence and litigation that at times could be described as inflammatory.
The parties have attempted mediation, but with little success.
The father has enrolled in various parenting courses including the “Kids Are First” program and the “Circle of Security” parenting course.
In addition each of the parties sought psychological counselling and psychiatric assessment.
PRINCIPLES RELEVANT TO PARENTING ORDERS
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3) in order to determine what is in the best interests of the child.
In particular, I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that whilst together the father was the perpetrator of family violence.
Section 65DAA(1) provides:-
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:-
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) as part of my consideration of the appropriate orders that are to be made.
I am also obliged to consider that in circumstances where I make an order for equal shared parental responsibility, whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(d). The Act provides assistance in the determination of “reasonable practicality”.
Accordingly, I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) could rebut the presumption.
If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires the Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practical. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC(2)(b) requires the Court to consider as a primary consideration:-
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother is alleging that the father presents a risk to the child arising from matters of family violence and his unstable demeanour and behaviour fuelled by mental illness.
PARENTAL RESPONSIBILITY
Notwithstanding the entrenched nature of the dispute and the parties polarised view of the other, no submissions were made in respect of parental responsibility. The father seeks an order for equal shared parental responsibility, the mother’s response is silent as to the order that the father seeks.
At this stage of the proceedings there seems to be no good reason why the parties should not have equal shared parental responsibility.
Whilst such a finding would then require consideration of the provisions of s 65DAA(1) namely, whether the child should spend equal time with the parties and if not then substantial and significant time, or such other order as the Court considers relevant should the consideration of the provisions of s 65DAA(5) speak against either equal time or significant and substantial time.
The orders that the father seeks concedes that the child should live primarily with the mother. That concession is principally based upon a proper consideration of the child being 15 months of age.
It would simply not be reasonably practicable, nor would it be in the best interests of the child for the child’s care to be shared.
In those circumstances, clearly the presumption is rebutted and there then needs to be a focus on what orders should be made that would best serve the child’s interests.
FAMILY VIOLENCE
Central to the mother’s case is that the father engaged in family violence during the course of the marriage and whilst the allegation is denied by the father, she argues that by reference to audio recordings made by her on 17 May 2015, 19 October 2015 and 20 October 2015 there can be little doubt that the father’s conduct was overtly aggressive and frightening.
The audio recordings assumed significant importance in the proceedings. It seems conceded by the mother that the three recordings (together with more recent recordings) were recorded covertly, or at the very least without the father’s knowledge. Whilst the transcripts of the recordings were not the subject of objection and were annexed to the mother’s affidavit of 15 March 2016, the mother considered that the full impact and relevance of the recordings could only be ascertained by hearing them. Because of the manner in which they were recorded the father objected and a significant part of the Court file has been devoted to this issue.
Eventually the father conceded that the recordings could be admitted into evidence (both transcript and audio) and also relented in his opposition to Ms R (psychologist) and Dr D (psychiatrist), together with any future family consultant instructed by the parties or ordered by the Court, to be provided with the transcript and audio.
The mother argues that the transcript alone does not convey the full impact of the father’s demeanour and behaviour, nor the effect on the mother.
I have paid particular attention to the transcripts being Annexures “B” and “D” to the mother’s affidavit filed 15 March 2016.
The transcript reveals distressing interaction between the parties. There is no doubt that the father’s conduct was likely to frighten, upset and intimidate the mother. She records the following excerpts as being particularly distressing:-
(a)“you are fucking loopy, you have fucked my life up”;
(b)“I will go hang myself in the shed”
(c)“You are a fucking filthy woman”.
In the transcript of 17 May 2015 the father is again recorded as using offensive language and the following is attributed to him:-
[Y]ou win, you made me cry… Im really sad… I feel like jumping in front of a bus right now because I don’t want to live this way… I don’t want to be treated like this… I haven’t done anything wrong… the worst week of my life and I just want to fucking end it… you don’t understand, you don’t care and you don’t give a fuck and you never will… that’s my life, noone gives a flying fuck… there is one person in my life that apparently doesn’t give a fuck about me… cause she felt offended by my brother well… thank you… take my life… when I’m no longer here… you cant treat me like this. You didn’t have to do that… you made a conscious choice… what you were doing. you knew what you were doing and you continued and continued a second time… and then ?… and then you came back for more because you thought you’d been offended… well lighten up… fucking [the mother]… oh she has been so offended and hurt cause someone didn’t… help out with the cleaning and she couldn’t do it… God fucking help me… and this weekend has ended on the lowest point possible and I have to go back to work and try to put on a brave face in the busiest fucking week of his fucking working career… he might as well just give up…
The definition of family violence is to be found in s 4AB of the Act:-
(1)For the purpose of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There is no doubt that the father’s language as recorded in the transcripts would satisfy the definition of family violence.
I can indicate that I have not listened to the tape recordings. It may be that it will be relevant at some point in the proceedings, but I do not consider it is necessary at this point. Moreover, it must be remembered that the proceedings are being heard on an interim basis and not by way of a final hearing. It is sufficient that the parties agree that the transcripts are accurate. I do not consider that I am obliged to listen to the transcripts.
Section 69ZN of the Act sets out the principles for conducting child related proceedings.
I have significant discretion pursuant to s 69ZN(4) and I am also cognisant that s 69ZQ sets out the general duties of the Court in giving effect to the principles pursuant to s 69ZN.
In any event, the audio has been sent with the consent of the parties to the husband’s psychologist and psychiatrist for their comment.
It should be remembered that the mother’s allegation of the father having perpetrated family violence is not a concept in the abstract. The impact that such a finding has on the proceedings is always to be brought to account and balanced by the best interests of the child. Section 60CC both as to primary and additional considerations require a focus on family violence issues as they may be relevant to the proceedings and impact upon the orders that each of the parties seeks.
The mother recognises that there is importance in the relationship between the child and the father. She also concedes that subject to further therapeutic intervention, at some point in the future it would be appropriate for the father to spend time with her on an unsupervised basis. Her contention is that those parameters have not yet been achieved by the father.
His position is that supervision has not been necessary in the past and is not warranted into the future.
The Court is assisted by the reports of Ms R and Dr D. Both have been provided with the audio recordings. The psychologist has responded to the effect that notwithstanding having heard the recordings, her report does not require amendment. The psychiatrist has not had an opportunity to respond.
Ms R – psychological assessment
By letter of instruction dated 9 June 2016, Ms R was requested to undertake a psychological assessment of the father noting the terms of the consent order made on 21 March 2016.
It is important to note that the psychologist received the necessary Court documents, but was also provided with a copy of the transcript of the audio recording of 20 October 2015.
It would seem that the report was comprehensive bringing to account the history of the father, including his medical and psychological history, education and social history. Whilst not being prepared to admit that the relationship featured family violence to the extent alleged by the mother, he admitted that “at times I reacted very badly”.
He recounted an incident with the mother in May 2015 that concerned the mother’s opposition to a tour of a children’s pre-school centre in circumstances where the child had been enrolled elsewhere. He stated “We had a barny about that, I recalled she pushed me”.
The mother was teary thinking about the child going to a childcare centre. The father described the mother as “very provocative, not listening to me, not understood my needs and emotions, didn’t have any capacity to empathise with me”.
He considered that the relationship with the mother was dysfunctional.
He attempted to explain the audio transcript of 20 October 2015 as having occurred against the background of a stressful day at work. He was frustrated by his feelings of marginalisation in respect of his parenting and he admitted that he was very upset and highly frustrated. The psychologist records the following:-
[The father] was apologetic and disappointed in himself in the way he behaved in the May, September and October 2015 incidents. He acknowledged that he verbally abused his wife on 17/5/15 and he explained that he had pushed through his wife and the bassinet. He explained that he commenced medication in June 2015 and was sleeping poorly when the trial was on.
He was willing to participate in counselling for emotional regulation. He mentioned [Mr G] and [T Psychology] as counselling options. He wanted the best for his wife and his daughter and for him to be the best he could for himself and as [the child’s] parent.
The father’s assessment involved the completion of various standardised psychological tests including the Kessler Psychological Distress Scale being a screening tool for psychological distress, the Beck Depression Inventory – Second Edition test designed to measure the presence and degree of depressive symptomology and the Beck Anxiety Inventory to measure anxiety symptomology.
It is important to note that the psychologist was of the opinion that “the relationship between [the father] and [the mother] was one in which there existed domestic violence including in [the child’s] presence”.
The father did not dispute the abusive language as alleged by the mother, but did deny any physical assault.
The assessment of the psychologist was against the backdrop of her determining that the father was “verbally abusive and emotionally abusive towards [the mother]”.
The father admitted that he had suicidal ideation and poor mental health in 2015, but the present test scores suggested that he had “minimal clinical symptoms” with the resultant likelihood of the father being well.
The opinion of the psychologist was not taken in isolation, but brought to account the brief report of the father’s general practitioner in his letter of 5 November 2015 namely that “he is not suicidal and at present has no evidence of mental illness other than as mentioned”.
The psychologist noted that following the separation of the parties and the ending of the marital relationship, the father’s health had improved. Her observations were not inconsistent with those of the general practitioner and the report of Ms H, family consultant, who had supervised the father’s time.
The father had participated and completed the Kids Are First program and was to undertake the Circle of Security parenting program.
The psychologist was of the opinion that the father did not present a risk to himself, the mother or the child. It seems that the presentation of suicidal and ideation and mental health issues in 2015 were significantly connected to the stressors of the marriage and the relationship with the mother.
Dr D – psychiatric assessment
By letter dated 9 June 2016, Dr D was asked to prepare a psychiatric report following an assessment of the father upon the following basis:-
Our client has now decided to seek a psychiatric report given the allegations of [the mother] that he has serious mental health issues which put [the child], born … 2015 at risk if he was to have unsupervised time.
The report of the psychiatrist is extensive and provides his assessment following interview and observation of the father on 14 June 2016.
His presentation to the psychiatrist was not dissimilar to his presentation to the psychologist.
He acknowledged that he was stressed as a result of the marital conflict, his demanding workload and the stress of a newborn baby. He was upset and confirmed that he was grumpy and often sad.
The father reported that he felt unable to reconcile the difficulties that he was experiencing with the mother and in particular what he considered to be his marginalisation and that of his family in respect of the care of the child.
He acknowledged that his conduct was inappropriate and that he regrets his behaviour.
It is clear that in May 2015 he was overwhelmed by his circumstances.
Similarly, he recognised the deleterious impact of his conduct on 19 October 2015 and did not resile from the transcript. Irrespective of his description of the mother’s conduct towards him, he indicated his regret to the psychologist in respect of his language and in particular saying to the mother that she would be happy if she came home and found him hanging in the shed.
The psychiatrist recorded that the father had completed two parenting programs, had seen Dr U on 11 occasions, was seeing the child twice a week and had been working effectively with “no time off for psychiatric reasons this year”.
The father painted a picture of significantly improved stability and was positive about the future.
On mental health state examination the father presented as appropriately groomed and appropriate in his demeanour. There was nothing to suggest that he was suffering from a severe psychiatric disorder, or any psychotic symptoms such as delusions or other abnormalities.
The father completed various psychiatric measuring instruments including Personality Assessment Inventory Critical Items Test that explores potential for self-harm, aggression and psychotic symptoms. He also completed the Standardized Assessment of Personality Abbreviated Scale which is designed to screen for personality disorders.
It is apparent that the review of the Court file and in particular various allegations and assertions contained in the mother’s affidavit material was comprehensively undertaken by the psychiatrist.
The psychiatrist was concerned that the history given by the father was different to that of the mother. He did not consider that the father was suffering from any psychiatric disorder, but it was likely that in 2015 he was suffering from an adjustment disorder with depressed and anxious mood.
The question of the father’s personality structure requires different considerations. Whilst not able to be diagnosed as a psychiatric disorder, the issue of the father’s personality structure is very much dependent on the evidence. If the father’s account is primarily accepted, then he is not suffering from a personality disorder, but he probably has “some unhelpful personality traits with a tendency to get emotional and to say unhelpful things when distressed”. If however the mother’s allegations concerning the father’s aggressive and abusive behaviour are accepted then he may have “significant maladaptive personality traits with problems managing anger and a tendency to be impulsive”.
I place significant weight on the history as provided by the father and if accurate, the father’s conduct and functioning in 2015 can be considered very much a result of the interpersonal conflict with the mother. If however there is a pattern of entrenched aggression and abusive behaviour not linked to the stressors of marital conflict, then a more cautious approach should be taken.
Counsel for the mother urged caution in accepting the father’s position that his presentation in 2016 apparently without incident is in some way confirmation that the father no longer presents a risk to himself, the mother or the child.
It is clear in any event that the mother does not accept the opinion of Ms R or the more benign view of Dr D.
SUPERVISION
The mother seeks that the father’s time be supervised until further order by a private supervisor namely Mr C, psychologist. Pending the completion of the intake process with Mr C, there are a range of persons acceptable to the mother, but not including the father’s parents or his brother.
The list of proposed supervisors as promoted by the mother does however include Ms I and Mr L who are both mutual friends of the parties and have agreed to supervise.
The mother’s objection to the father’s brother Mr V Garner and by implication his wife Ms W Garner appears to emanate from a dispute that has arisen between the brother and the mother concerning the threat of defamation proceedings being taken against her if she does not provide a written apology and “a complete written retraction of her grossly defamatory statements”.
The dispute arises in respect of an allegation by the mother that the father’s brother had “some equipment to enable surveillance” and possessed a gun on his farming property.
The implication was that the father would be able to access a firearm with the consent or assistance of his brother.
The dispute is unfortunate, but I consider that whilst the father’s brother and his wife are no doubt persons of substantial integrity, the unresolved dispute adds a stressful dimension to the relationship between the parties. The focus must be in respect of the child and not to pander to the sensitivities or sensibilities of the parties and their family and friends. In circumstances where if supervision is required there are others about whom there is less contention, it seems to me that the proceedings do not need to have the added complication of the formal involvement in the process by the father’s brother potentially in hostile disagreement with the mother.
The paternal grandparents are however in a different position.
Each of them have filed an affidavit setting out their circumstances and their willingness to act as a supervisor of time spent between the father and the child.
Paragraph [5]-[6] of the maternal grandmother’s affidavit filed 15 June 2016 states:-
I am aware that [the mother] has alleged that [the father] is, or has been suicidal. I have witnessed [the father] to have been distressed and extremely upset at times by reason of the discord experienced during his marriage to [the mother] but he has never discussed with me or even mentioned any suicidal ideation.
I am concerned that allegations have been made that I have referred to [the father] as having had suicidal ideation when he has never mentioned any suicidal ideation to me at any time.
It was a matter of distress to the paternal grandparents to learn of an assertion of the mother that she considered them to be too old to be trusted with the care and safety of the child.
There is no doubt that the paternal grandparents strongly support the father. Equally, there is nothing to suggest that they would allow any harm to come to the child.
The purpose of supervision is to ensure that a child or children whose time is spent with a parent under supervision is safe, this being the paramount consideration.
It is also important that the child’s time with each of her parents is a pleasant and rewarding experience.
Should supervision be required, I consider that the paternal grandparents are entirely appropriate.
Mr C – psychologist
Mr C is promoted by the mother as a person who should supervise the time the child spends with the father on an ongoing basis. The advantage of Mr C is that he is clearly independent of the parties and also has the necessary skill set to be able to assist and advise in terms of the child’s management, particularly given her age.
I do not consider that it is necessary nor viable for Mr C to continue in the role of supervisor until further order. To the extent that there is advantage in his involvement, I consider that it may assist the parties not because the father necessarily presents a risk to the child, but simply to provide some comfort to the mother that the father is able to care for the child and has the necessary parenting ability and that any report to the parties of the father’s time with the child will be accurate and without emotion or bias.
I have considered the reports of Ms H who observed the father’s time with the child. It could not be said other than it was entirely satisfactory.
There is however some advantage in a cautious approach to the matter moving forward.
Section 128 Certificate – Audio recordings
During the course of the submissions, senior counsel for the mother raised the issue of the status of both the mother’s evidence of the audio recordings including her affidavit material containing transcription of the recordings, together with the tender of a USB device on which the recordings are stored. With the consent of the father the USB was received and marked as exhibit “1”.
Whilst the issue was not the subject of formal application, I think it is reasonable to consider that the submissions of senior counsel were to the effect that she sought that I grant a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“Evidence Act”) in relation to both the affidavit material and the USB device.
The proceedings are interim and interlocutory. Affidavit material has been filed without objection or application for an evidence certificate in both the Federal Circuit Court and now in the Family Court of Australia.
Section 128 provides as follows:-
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(iii)of the effect of such certificate.
In dealing with the New South Wales equivalent of the Evidence Act, Einstein J in the decision of Meiko Australia Pacific Pty Ltd v Hinchcliff [2009] NSWSC 354 at [184]-[186] said:-
The terms of s 128 clearly contemplate the certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken.
To the extent that a certificate can be issued after the giving of evidence, this may occur where the court has ruled but not granted a certificate: Cornwell v R [2006] NSWCCA 116 at [87]-[94]. The certificate in that proceeding concerned answers concerning specific matters in cross examination.
A retroactive application of s 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of this section, which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given, it cannot be said that the witness has been compelled.
The matters that are set out in the affidavit material relied upon by the mother were not made in circumstances where she was coerced to give evidence or felt under threat of same but rather, because she considered it to be integral to the orders being sought by her.
It was possible for the mother to have conceded that there may be an issue that arises in respect of the manner in which the recordings are made and that before the evidence should be presented a certificate could have been sought. That was not the approach adopted.
Senior counsel for the mother referred to the decision of Janssen & Janssen [2016] FamCA 345 where McClelland J issued a certificate pursuant to 128 of the Evidence Act in relation to the affidavit of the mother and admitted both the transcript and the audio recordings as exhibits in the proceedings.
There is a significant difference in respect of the circumstances of Janssen (supra) and the current proceedings. The application before his Honour was not initially to seek the protection of an evidence certificate but rather to tender over the opposition of the father the various voice recordings and the transcriptions. The application was made on the first day of a four day hearing. The voice recordings and transcriptions had been provided only of recent date. The nature of the objection was that the mother’s conduct may have contravened s 7 of the Surveillance Devices Act2007 (NSW). Ultimately his Honour determined to admit the evidence either because the mother was able to satisfy that there existed an exception to the prohibition, or in any event by reference to the provisions of s 138 of the Evidence Act namely, that the benefit and relevance of the evidence outweighs the undesirability of admitting evidence that may have been obtained unlawfully.
The issue before me is no longer an argument as to the admissibility of the audio recordings. The transcription of the audio recordings as contained in the mother’s various affidavits are not the subject of objection. By his own application, the father withdraws his objection and seeks that the audio recordings be admitted into evidence.
In such circumstances it is difficult to see where there now arises the need for any protection that may be afforded by an evidence certificate.
Other than the order made for a certificate to issue in respect of the affidavit material (but not in relation to the audio recordings), the decision of Janssen (supra) provides no assistance as to the basis upon which a certificate was granted.
Accordingly, I do not consider it appropriate to order that a certificate issue either in respect of the affidavit material already filed by the mother, or in respect of the USB device that contains the audio recordings.
CONCLUSION
Ultimately I am satisfied that the father does not present a risk to the child and that he is stable in respect of his mental health and presentation. He continues to hold down a responsible position, has undertaken highly regarded parenting courses and has been the subject of detailed examination and observation by his general practitioner, psychologist and a psychiatrist.
There are no allegations in respect of any mental health issues or aberrant behaviour in 2016.
Whilst the mother is aggrieved by the suggestion that the father should spend unsupervised time with the child, her opposition stands or falls on the issue of whether the father presents as a risk to the child.
The final consideration is to be given by Dr D to the audio recordings in order to determine whether his opinion would change.
I consider that there should be some initial supervision by Mr C who would then be able to prepare an observational report as to the interaction. Until Dr D has had an opportunity to listen to the audio recording and to provide his opinion as to whether he would change his report in any material way, the father’s time should be supervised by the paternal grandparents.
If the report of Dr D remains unchanged, the father’s time with the child should be unsupervised.
It is also reasonable for the father’s time to be extended thereafter to four hours with no change to the frequency of the time.
The parties are not able to agree the handover arrangements for the child. The mother would seek a McDonald’s restaurant at Suburb E because it provides both a public location but also one that is monitored by CCTV. The father proposes a café at Suburb X. The mother opposes the father’s proposal because of the lack of CCTV.
It is unfortunate that the parties are not able to reach agreement in respect to the most simple of matters, but there may be some good sense in adopting the mother’s proposal for handover.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 August 2016.
Associate:
Date: 5 August 2016
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