Garnier and Scott (No.2) - [2009] FMCAfam 700

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARNIER & SCOTT (No.2)

[2009] FMCAfam 700

FAMILY LAW – Interim arrangements for care of children aged 6 & 4 – allegations of serious family violence – arson – best interests.

Garnier & Scott (No.1) [2008] FMCAfam 1474

Applicant:

MR GARNIER

Respondent:

MS SCOTT

File number:

ADC 3580 of 2008

Judgment of:

Brown FM

Hearing date:

1 May 2009

Date of last submission:

1 May 2009

Delivered at:

Adelaide

Delivered on:

1 May 2009

REPRESENTATION

Counsel for the Applicant:

Mr N. Eid

Solicitors for the Applicant:

Andrew Hill and Co

Counsel for the Respondent:

Ms M Dickson

Solicitors for the Respondent:

Ann Josephson Lawyers

Independent Children's Lawyer:

Mr R.J. Croft

ORDERS

The trial dates of 23 and 24 July 2009 are confirmed.
Paragraphs 6, 7, 8 and 9 of the orders made on 5 February 2009 do continue.
The father be restrained and an injunction is hereby granted restraining him from driving the children in a motor vehicle until he produces a valid motor vehicles licence to the mother or her legal representative
The father attend a Kids are First program at his earliest convenience.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3580 of 2008

MR GARNIER

Applicant

And

MS SCOTT

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. As the date scheduled for the final hearing is imminent, it is appropriate the reasons be transcribed. Grammatical errors have been corrected.
This afternoon I have to deal, once again, with proceedings concerning Mr Garnier, the father, and Ms Scott, the mother. They are the parents of two children - [X], who was born in 2002, and [Y], who was born in 2004.
Apart from the father and mother, there is another party to the proceedings. That is Mr Croft, an experienced Adelaide family lawyer who has been appointed as the independent children's lawyer for [X] and [Y].
One of Mr Croft's functions is to assist the court in gathering evidence in respect of how the best interests of the two children concerned will be served. In this capacity, Mr Croft has arranged for a family assessment report to be prepared.
The report concerned has been written by Dr Asquith, who is an experienced practitioner in the field of family dispute resolution.

Dr Asquith also has experience in assessing parental relationships and the degree of relationship between children and their parents, particularly in circumstances where there is a significant level of conflict between the parents concerned.
Once again I am dealing with the parties' respective applications at the interim stage, as opposed to the final stage. At the interim stage, I am not able to resolve matters of factual dispute between the parties, which is ordinarily left to the final stage, where a more exhaustive process of evidence evaluation is available.
In the system of law, which prevails in Australia, courts determine the truth or otherwise of what witnesses have deposed through the process of cross-examination. Through this process of cross-examination, testimony is subject to testing and scrutiny.
After that process, very often but not always, courts are able to make findings of fact as to whether and how a particular event occurred. As the parties will be aware, there has been no cross examination of either of them yet. That will occur at the final trial stage, which is not far off.
These reasons for judgment should be read in conjunction with other reasons for judgment which I delivered on 14 November 2008. In that judgment[1], I set out the very many matters of dispute between the parties. I will not repeat those matters now, other than to say these are very many matters of significant moment in dispute between the parties.
[1] See: Garnier & Scott (No.1) [2008] FMCAfam 1474
The matter was listed today because it was hoped that the family assessment report would be to hand and therefore it would be appropriate to revisit arrangements for the care of the two children concerned, particularly the extent of time they should spend with their father, leading up to the hearing of the parties' substantive applications on 23 and 24 July this year.
The hearing on 23 and 24 July will be different to these interim proceedings in that the parties, at that stage, will have more time to present their respective cases and in particular each of them and other witnesses who are associated with their respective cases will be subjected to cross‑examination. Up to this stage there has not been sufficient time to allow for that cross‑examination process. On my calculation the hearing date is about 10 weeks away.
At this stage it is the father's position that there should be an increase in the amount of time which he spends with the two children concerned. Previously, on 14 November 2008, orders were made for him to have supervised time with [X] and [Y] at the [N] Children's Contact Centre. That process of supervised visitation apparently went well.
Thereafter, on 5 February 2009, the parties agreed that the father should spend some time, with the two children, from 9 am on each Saturday until 1 pm on that day. The children were to be exchanged between the parties inside the [C] police station. The use of a police station to exchange the children is indicative of the high level of mistrust between the parties both at that stage and now.
The father's position is that the time is now right to extend his time with the two children. His proposal is for a modest increase in the time the children spend with him on each Saturday. He proposes that the time be changed to be from 11 am on Saturday until 6 pm on that day. The mother does not wish the current arrangements to change at this stage.
Mr Croft, who is to be regarded as a party to these proceedings, urges caution and leans in favour of the mother's position.
Dr Asquith saw the parties and the two children concerned, at her rooms, on 3 April 2009. She read the material on the court file. She also interviewed the mother's current partner, Mr F. She had the opportunity of seeing the two children with both their parents.
Dr Asquith was also able to take a substantial history from each of the parties concerned. In her report she summarised the issues in dispute as being concerned with the mother's position that the children were likely to be at risk, if they spent lengthy periods of time with their father.
In addition, Dr Asquith noted the very different positions of the parties regarding the history of violence in their relationship. She was further concerned regarding allegations of substance abuse and health issues, which pertained to both parties but particularly the father. Dr Asquith also thought that this was a case which raised issues to do with a significant level of parental conflict, poor communication skills between the parents concerned and a possible power imbalance between them.
As in all matters relating to children, where an expert is involved,

Dr Asquith has a significant advantage over me, in that she has actually seen the two children concerned interacting with their parents.

Dr Asquith was impressed with the two children who, in her observation, were well-cared for and happy children who were doing well. It was clear to Dr Asquith that the children concerned have a close and loving relationship with their mother.
When Dr Asquith saw the two boys with their father she observed that they ran to him and were delighted to engage with him. There was some discussion about the father's cat. [X] climbed onto his father's lap and later [Y] took that position. There was some badinage about whether their father was prepared to put a biro tattoo or something like that on each of the children's arms. Mr Garnier said no at first but was later obliging, at the children's instigation, and they were apparently delighted at that. The two boys and their father talked about football and made friendly and comfortable conversation.
That brief and perhaps in many ways unremarkable history is indicative that the children know their father and are comfortable with him. Certainly Dr Asquith considered it so.
As a result, Dr Asquith thought that [X] and [Y] were likely to benefit from being able to maintain a secure, trusting and loving relationship with their father and, as I say, Dr Asquith had no doubt that the children had such a relationship with their mother.
However, it is I think clearly Dr Asquith's opinion that, given the very many areas in dispute between the parties, the court should be cautious about whatever is done, particularly at the interim stage. Dr Asquith, I think, was quick to point out that it is not her function to make findings of fact about the very many issues in dispute between the parties.
In her report Dr Asquith posited two possible options. Option 1 was that, if the court determines that the father would not constitute an unacceptable risk to the children's emotional, psychological and physical safety, the children should commence graduated time with their father over the course of the next 12 months or so. She thought that this could start perhaps with a sleepover on alternate weekends for the next six months or so. Option 2 was for an immediate start to a long weekend option. Dr Asquith was not in favour of that.
Since Dr Asquith has written her report, or perhaps during the process of it, things have occurred. Ms Scott has prepared an affidavit, which was filed on 29 April. It is her case that her car and Mr F's car were the victim of an arsonist, on 16 April 2009. Their two cars were fire bombed and burnt to the ground. At the time the vehicles were parked outside her home. It is her case that in the past her home has been broken into and a dog has been impaled. Earlier, she has deposed that in March of 2009 there were unsuccessful attempts to burn her car and, on 8 March, she alleges her fence was burnt.
The mother has suspicions that it is the father who is responsible for this undoubtedly serious criminal behaviour but he has denied any wrongdoing on his part. He has not been charged by the police in respect of arson, and in those circumstances the mother concedes that there is no concrete evidence which connects the father to this behaviour.
In addition, it seems there has been an incident between the parties on or around 17 April this year. It is Ms Scott's case that Mr Garnier came to her home uninvited and thereafter there was an altercation between him and Mr F, such that the police were summonsed. Ms Scott's evidence is that she was fearful of Mr Garnier at the time.
In any event the police did not come immediately when called, and the father left, but he returned sometime later and, unbeknownst to him, there was an unmarked police car - and this led to the father being charged with unlicensed driving.
The police, as one might expect, have taken the arson incidents extremely seriously, and the mother, Mr F and the children concerned are now living in secure and secret premises. Mr Garnier has provided a report from the local newspaper about the arson attacks and in the newspaper article there is a photograph of the mother's motor vehicle, which is obviously gutted by fire.
The children concerned, who are of course young, are, on Ms Scott's evidence, frightened by what has occurred and are now having difficulty getting to sleep. Ms Scott says she is seeking counselling for the two children. [X] has apparently indicated his view that his father may be behind the incident.
Mr Garnier concedes that he has been charged with driving unlicensed. His counsel, Mr Eid, tells me that, in the past, his client has had a driver's licence which has expired, and his client is going to get a learner's permit which can be converted into a driver's licence quickly.
It is the father's position that the fact that he is unlicensed does not of itself pose a threat to the children concerned, regardless of what attitude it shows on his part towards the requirements of the law. I am told that within a fairly short period of time he can obtain a driver's licence.
In his affidavit, which he has recently filed in this matter on 29 April 2009, Mr Garnier does not allude to the circumstances of him being charged with driving unlicensed. In my view the significance of the incident is that Mr Garnier was at the mother's home, where it is hard to see he had justification for being, given the very poor relationship between the parties. It is hard to see how his presence outside Ms Scott's home could have added very much to the good to what has occurred.
In any event, the father strenuously denies that he is the person who has set fire to the mother's and Mr F's vehicle. To the contrary, it is his position that the mother has significant gambling debts and, by necessary implication, it appears to be the father's position that this arson has occurred in retribution for the mother failing to make good her debts.
At this point in time I have to make some sort of assessment of the risk to the children if I do what Mr Garnier wants. If I find that there is some risk of the children coming to some form of harm and I find it to be unacceptably high, I should not make the orders that Mr Garnier wants.
At this point it is impossible for me to conclude, on the balance of probabilities, that it is the father who has been guilty of these arson attacks. However, I have to take the incidents seriously because in my view it is not a common occurrence that a person has her motor vehicle burnt.
In my view such an incident does have the possibility of causing some psychological upset to children of the ages of the two children concerned in this case. It is not normal for a parent's car to be burnt through an act of such criminality.
I do not discount by any means Ms Scott's evidence that the two children have been upset by what has happened. Certainly the police take seriously what has happened and have put the children and the mother in safe and secure premises.
In this case I think it would be imprudent of me to easily dismiss Mr Croft's position that the court should take a cautious approach. One of the matters I have to take into account in determining the best interests of the child is how that child can be best protected from coming to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Family violence is defined in the Family Law Act to mean:
Conduct (whether actual or threatened) by a person towards a family member, or property of a member, that causes reasonable fear (or reasonable apprehension) for his/her personal wellbeing or safety.
So in my view, if Mr Garnier has been responsible for the arson, it is family violence of the most serious category. I am directed by the legislature to bear that in mind.
It may be the case that it will never be known, definitively, who was the person who was responsible for the arson attack. Certainly, at this interim stage, I am not in a position to make a finding of fact. I may be in a better position at the final hearing of this matter.
True it is I also have to, as a primary consideration, consider the benefits of the children having a meaningful relationship with both their parents. From what Dr Asquith has said, clearly [X] and [Y] are likely to benefit from having a meaningful relationship with their father if what Dr Asquith saw was any indication of their level of relationship with him.
The hearing in this matter is a short time away. I have to balance the two primary considerations against one another in this context. As I say, I think the issues relating to family violence are serious. This is not an ordinary situation by any means.
Balancing on the one hand the serious issues of family violence and on the other bearing in mind that the children will continue, if I leave the orders as they are, to have some level of relationship with their father, I think in all the circumstances I should do as Mr Croft seeks.
For all these reasons, the orders of the court will be set out at the commencement of these reasons for judgment.

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

Associate: J Williams

Date: 1 May 2009