GATRILL & GATRILL
[2019] FCCA 3885
•13 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GATRILL & GATRILL | [2019] FCCA 3885 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – interim hearing – requirement to act cautiously – issue whether time should be supervised – supervised time ordered – child inclusive conference ordered – matter to be further considered when additional evidence available. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC(3),60CC(a), 64B, 65A(a), 65D, 9ZL |
| Cases cited: Banks & Banks (2015) FLC 93-637 |
| Applicant: | MR GATRILL |
| Respondent: | MS GATRILL |
| File Number: | SYC 3070 of 2019 |
| Judgment of: | Judge B. Smith |
| Hearing date: | 4 November 2019 |
| Date of Last Submission: | 4 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Reid Family Lawyers |
| Counsel for the Respondent: | Mrs Bridger |
| Solicitors for the Respondent: | Jo-Anna F S Moy Solicitor |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Sydney Central Family Law |
ORDERS
The matter be listed on 23 March 2020 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
That the children X born in 2007 (“X”), Y born in 2009 (“Y”) and Z born in 2011 (“Z”) (collectively referred to as “the Children”) live with the Mother.
That on a without admissions basis and on 2 occasions upon 48 hours’ notice from the Independent Children’s Lawyer, the Father shall do all acts and things necessary to undertake:
(a)An up-to-date liver function test specifically measuring GGT levels as well as AST and ALT levels;
(b)Carbohydrate Deficient Transferrin (“CDT test”) to detect excessive alcohol use for this purpose;
(c)The CDT test is to be analysed using high-performance liquid chromatography (“HPLC”) analysis method;
(d)The Father shall instruct his general practitioner that the referral of blood testing is to include a request that a copy of the results be sent to the Father;
(e)The Father shall provide copies of the CDT test results to the lawyers of the other party and to the ICL;
(f)The cost of such testing in relation to the Father is to be borne by the Father.
That changeover shall take place at the Children’s school on days when the children are attending school or at A Sports Park, Suburb B when the children are not attending school.
That both parties be permitted to attend school events and sporting/extra-curricular events to which parents are invited regardless of whether the children are in their care at that time.
That the parties advise each other as soon as practicable in the event the children require hospitalisation or specialist medical treatment including the nature of illness or accident and the details of the hospital or treating practitioner.
That the parties notify each other in the event the children are prescribed mediation and they shall provide all such mediation to the other party to administer the medication whilst the children are in the other party’s care.
That on a without admissions basis, the father be restrained from consuming alcohol within 12 hours before and/or during any period the Children are spending time with him.
That the parties be restrained from:
(a)Denigrating the other parent and/or the other parent’s partner or family members to or in the presence of the children; and
(b)Discussing the content of these Court proceedings with the children.
THE COURT ORDERS, UNTIL FURTHER ORDERS THAT:
That each party is to keep the other informed of their, email address and mobile number and notify the other within 24 hours of any such change in those details.
That the Children spend time with the Father as follows:
(a)Each Saturday from 10:00am to 5:00pm with such time to be supervised by a person agreed in writing between the parties, or absent such agreement to be professionally supervised by Contact Centre C or by such other private supervision agency as may be agreed between the parties in writing;
(b)The parties are to pay equally for the supervision;
(c)If a professional supervisor is utilised the parties are to obtain supervision reports and are to pay equally for those reports;
That the parties within 7 days do all things reasonably necessary to enrol and cause the children to attend at The Anchor Program of P Family Services, Suburb E (“P Family Services”).
The parties are to provide a copy of these orders to P Family Services.
The Independent Children’s Lawyer may seek an oral or written opinion or advice from P Family Services as to whether or not it is appropriate for the children to continue to consult with Ms F, in particular in the context of the their attendance at the Anchor Program.
The mother shall ensure that when the children consult with Ms F each child is to be seen separately and also in the absence of the mother.
The mother is to provide Ms F with a copy of these orders prior to any further counselling session taking place with any child.
Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Inclusive Conference with a Family Consultant in this Registry on 17 March 2020 at 9AM AND the parties are advised that if a person fails to comply with this order or any instruction the Consultant gives to the person the Consultant must report the failure to the Court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the Child/ren promptly at the commencement of the Conference.
THE COURT NOTES THAT:
(A)The parties have advised they are considering the appointment of a single expert and have liberty to approach in Court for the making of such orders in chambers.
(B)The parties and the Independent Children’s Lawyer may jointly approach the Court in chambers to vacate the Child Inclusive Conference if they agree that is appropriate.
(C)The court will treat this matter as part heard and these orders as a preliminary set of interim orders made for the purpose of re-commencing time.
(D)If at the next mention the applicant is in breach of the order 1 of the orders of 4 November 2019 the Court will consider listing the respondent’s application for the sale of the former matrimonial home in interim hearing.
(E)The Independent Children’s Lawyer has asked that the Court note in regards the testing referred to above, that regardless of whether or not the identification of the person providing a sample is checked at the time of sample collection and regardless of whether or not chain of custody control is exercised these matters will not be noted on the test results.
IT IS NOTED that publication of this judgment under the pseudonym Gatrill & Gatrill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3070 of 2019
| MR GATRILL |
Applicant
And
| MS GATRILL |
Respondent
REASONS FOR JUDGMENT
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in respect of an interim parenting application for parenting orders within Part VII of the Act.
The short background to the matter is it involves the applicant father, Mr Gatrill born in 1974, who is 45 years of age and the respondent mother, Ms Gatrill born in 1973, who is 46 years of age together with the three children of the marriage: X, who is 12 and currently in year 6 going into year 7 next year; Y, who is 10 and currently in year 4 going to year 5 next year; and Z, who is 8 and going into year 3 next year.
I note that X, Y and Z are currently all at the same school at Suburb G. X will be transferring from H School, Suburb G, to J School in Suburb K, and Y to year 5 at L School, Suburb K, which is opposite J School in Suburb K, while Z will stay at the same school.
The parties commenced cohabitation in about 2005, were married in 2006 and separated in 2018. An Independent Children’s Lawyer has been appointed for the purpose of representing the interests of the children.
Before I go into the substance of the matter, I note that during the course of argument agreement on a number of subsidiary matters was reached and accordingly I will make, by consent, what were the orders proposed by the Independent Children's Lawyer’s orders 1, 4, 6, 7, 8, 9, 10 except in 10 that the words “residential address” will be removed, and 11.
I note that order 6 was agreed to by all parties, which involves both parties being permitted to attend school events and sporting and extracurricular events and, although on the face of it it may appear inconsistent with some of the mother’s case, I take it that since it was agreed the assumption is in that the public nature of these places provides supervision. In any event, where it was agreed to by all parties it seems inappropriate for me not to make the order.
The Orders I have made by consent then include that the three children will live with the mother on a without admission basis. On two occasions and on 48 hours’ notice from the Independent Children’s Lawyer the father will undertake a series of liver function tests and carbohydrate-deficient transferrin (“CDT”) tests to analyse whether or not he has engaged in excessive alcohol consumption over periods of time, which is one of the issues raised in this case.
The other agreed orders have to do with: the parties both being permitted to attend school events and extracurricular activities to which parents are invited; that the parties are to notify each other in the event the children require hospitalisation; the parties notify each other in the event the children are prescribed medication; on a without admission basis the father has agreed to be restrained from consuming alcohol within 12 hours before or during any period the children are spending time with him; each party is to keep the other informed of their email, mobile and notify the other within 24 hours of any change in those details; the parties be restrained from denigrating each other or their partners or family members in the presence of the children or discuss any contents of the Court proceedings.
I note that there was also, during the course of argument, an agreement that it would be appropriate for the children to attend the Anchor Program run by P Family Services at Suburb E. Indeed, the parties had already commenced that process and that was quite independent of their consultation with a person named Ms F, who I will deal with separately.
The sticking point and the point of contest were the competing proposals which were as follows: the Independent Children’s Lawyer (“ICL”) who had spoken with the children suggested that the children should spend unsupervised time with the father from 10am to 6pm each Sunday and from after school or 3pm to 7.30pm each Wednesday. The father agrees with the Sunday time, but suggested that rather than a Wednesday the time should be Thursday, 3pm to 7.30pm, partly because the children have no summer activity and the winter activity was Y’s sports where the father was a coach. During school holidays he sought to have a full day on Wednesdays from 10am to 7.30pm and so sought that the order should read, “Save that in school holidays the time commence at 10 am”.
The mother has taken a position that the father poses an unacceptable risk to the children, for reasons which I will consider in detail in a little while, and on that basis in order to maintain the children’s relationship with the father in a fashion which does not pose an unacceptable risk to them the mother has proposed, to start with, that the children should spend each Saturday from 12pm to 5pm with the father supervised by Contact Centre C. Or, indeed, I should say she has proposed that the two younger children should do that and that the older child, X, who has expressed on one view a wish not to spend time with the father, should not be required to do so because of her age.
Those are the real competing proposals. I note that subject to what occurs, the parties agreed that for the purpose of the children spending time with the father if it was unsupervised, the father would facilitate the children’s attendance at the extracurricular and sporting events and activities so that their time with him did not impair their normal activities. Also, in that case changeover would take place at the children’s school on school days or at the “A Sports Park” at Suburb B on days the children were not attending schools.
I have read the affidavit material relied upon. Rather than going through the allegation and counter-allegation in detail, I think the major issues are fairly summarised in the Child Dispute Conference memorandum (“CDC memo”) which was prepared by family consultant Ms M on 1 November 2019. Most of what the mother has said has been picked up in that report in a summarised form. I note there is, as is so often the case in parenting matters on an early interim basis, a very significant contest of fact.
The risk factors identified by Ms Gatrill were that she says that throughout the relationship the father perpetrated significant financial, emotional and physical violence against her. She says that particularly from 2012 onwards the father would go into frequent rages, particularly after consuming excessive amounts of alcohol. She alleged that the father had frequently made a fist with one hand and punched his other hand with it in order to intimidate her. She said he had destroyed her personal ornaments, including a large glass bowl. He used one arm to violently swipe that bowl off a table and on to the floor. Most significantly, I will come to more material around this later, the mother alleged that in 2013 the father
“put both hands around her throat in an attempt to strangulate her, causing her to gasp for breath”
I believe it is within the ambit of a Court undertaking family law parenting proceedings to take some limited notice, within s.144 of the Evidence Act 1995 (Cth), of what may not be a matter of general common knowledge but a matter of accepted information in these matters, which is that attempted strangulation is, of course, one of the leading indicia of subsequent lethality. It is one of the most serious allegations that can be made.
In that context the mother also alleges later that in 2018 the father threatened to “finish her off”, referring to the 2013 incident of alleged strangulation, and she said that the father had been verbally abusive towards her parents, calling them derogatory names, and also threatened to punch her father in the face.
As part of this systemic violence the mother also alleged that the father systemically undermined her confidence for many years, that he would mock her work and her appearance and that as a consequence of his family violence both she and the children “walked on eggshells around the father for many years”.
She said that as soon as the father became angry the children would reach for her keys and wallet as they knew they would need to escape the family home quickly, and that on one occasion in 2015 she and the children were forced to escape out of a bedroom window and to seek refuge at the home of a neighbour. She alleged that on one occasion in 2015, Suburb N Police were called to the family home when Mr Gatrill was in a rage and withholding her car keys. She said they took no action other than to return the car keys to her.
She said that the police told her to go and stay with her parents because AVOs are a lot of work. The mother says that since separating from Ms Gatrill he intimidates her in public, in particular at the children’s sporting activities. I note in that respect that, nevertheless, the mother has consented to the father attending at sporting activities, but I infer from this that she has decided that the public nature of the events make it sufficiently safe. She said that the father stares at her in an intense and menacing way and I note now that these events are the subject of much controversy.
The father’s position is whilst there was a tempestuous relationship, but that the material relied upon by the father, and indeed by the ICL, in police notes at exhibits 2 and 3, which relate to events in 2015 and 2018, which it is suggested are the events referred to by the mother in her affidavit and noted in the CDC memo, do not support her claims.
I will come to what the police material says later, but I simply note now that this is hotly disputed.
In speaking with the family consultant, the father strongly denied perpetrating violence against Ms Gatrill. He claimed he did not attempt to strangle her in 2013, but he simply held her in a “bear hug” because she, in fact, was physically hitting him. He agreed that he slid a vase off the table on one occasion, denied holding the mother’s keys in 2015 and said that he was simply holding them at the time of an argument and he alleged that throughout the relationship the mother frequently belittled him, told him he had mental health issues, accused him of being alcohol-dependent and of not earning enough. He alleged that the mother had slapped and scratched him once or twice.
The father alleged the mother forced the children to become overly involved in various sports, including swimming, and they didn’t get time to relax and also complains that the children didn’t have a healthy diet. These are not such significant matters, although they may be to him.
The mother also claims that, because of fear, X was bed-wetting during the relationship until separation when she stopped bed-wetting. The mother says that she has had to install alarms on all the doors of her current home and the children insist that she checks that all doors are secured every evening. She said that she is fearful that the father will harm the children “as a last act of power”. The mother said the children all lead a healthy nutritious lives and they love sport.
The allegation has also been made that the father consumes excessive amounts of alcohol, up to 15 beers in one sitting.
I will stop at this moment just to note that on that issue the Court cannot know what the true position is at the moment. This is clearly a case where the Court has, as noted in Goode v Goode [1], conflicting facts and only some helpful evidence as to what constitutes the truth of these very serious allegations.
[1] Goode v Goode [2006] FamCA 1346, [81].
On the alcohol issue the father did tender two sets of testing results, one a CDT test collected on 28 October 2019, which showed the CDT rating at 1.2. and it includes the note, although there was an argument about how much notice the Court could take without a full expert report, but the Court notes that the result is less than the 1.7 per cent of CDT in the blood, which would be said to be equivocal and, therefore, it was below the level at which the report notes CDT levels would be elevated and indicating that it involves consuming, at least, 60 grams of alcohol in more than 14 consecutive days.
Noting a half-life of a raised CDT is eight to 14 days, that it wasn’t chain of custody testing, and there was no identification protocol in place, which means it doesn’t have the same weight that it might have if there was chain of custody testing to make sure it had not been interfered with and if there had been identification protocols in place to ensure that the person who gave the blood sample was the father, it still has some weight. I note in the same capacity, chemistry testing collected on the same day showing gamma GT, AST and ALT all within the normal specified range.
Again, we don’t have any expert evidence but the fact that it’s within the range of normal results suggests that, at least, for the period of a month or so prior to those tests the father was not conducting excessive drinking. That doesn’t mean he wasn’t beforehand. I do note that the father has consented to, and orders will be made in respect of, random testing to determine whether or not he has an alcohol issue which is presently uncontrolled as alleged.
The father claims that the mother has both an eating disorder and other undiagnosed mental health issues. The father says the mother sends him abusive texts which he says are indicative of a mental health issue, although the basis of his opinion in that latter respect is not clear. The father says he has attended upon two counsellors in order to convince the mother that he is not mentally unwell as she claims. The family consultant noted that both parents said they did not communicate with each other at all.
The issues for the children were noted by the father that since separation in April 2018 the mother had not allowed the children to spend overnight time with him. The father said he had spent approximately four hours unsupervised with the children each week. That time usually coincided with their sporting activities. The father said he was concerned the children were not coping with the parenting dispute and he enrolled them in the Anchor Program with P Family Services. I note that the parties agree that that was appropriate and should continue and I make orders in accordance with that agreement.
He said that, consistent with the mother’s case on her wishes, X had recently said to him to “die in a ditch”. He said that is language inappropriate for her to know of, although these days to expect a 12 year old not to know that language seems a little naïve. The father said he was concerned that Y had recently lied to him, telling him that sports practice was cancelled due to hot weather, but the father said he, nevertheless, went to sports practice because it was not cancelled and that when Y saw him his “jaw dropped.
Again, putting aside at the moment what the cause is and whether it is as the mother alleges that the children are scared of the father because they have observed his conduct or whether, as the father alleges, the mother is intentionally alienating the children from him, both X’s comment and also Y’s deception do indicate a subjective intent on their parts not to spend time with the father. The cause of that will need to be investigated. The father said that since the children met with the Independent Children’s Lawyer approximately three weeks prior to this Child Dispute Conference, which was on 1 November 2019, the children had spent no time with him at all.
Part of the father’s case is that from April 2018 until about October 2019 the mother had been happy for the children to spend time with him and the children have been happy to spend time with him and that the change in circumstance he asked the Court to infer, in effect, is as a consequence of the mother convincing the children that he is dangerous and not to spend time with him, perhaps as part of these proceedings.
The mother says that X refuses to spend time with the father because she is angry with him about his allegedly abusive behaviour in the home. She says that Y previously agreed to spend time with the father in order to retrieve his bike. I note in that respect that the father had Y’s bike at his house as something that Y could have there and spend time playing with and the father has, ultimately, returned the bike to Y to keep with him where he is now.
The mother’s case, as set out and summarised by the family consultant, is that all three children are very fearful of the father. She said she felt guilty about the children being exposed to the father’s family violence for many years and she realises she should have left the relationship earlier. She said that all three children are attending upon counselling.
As the family consultant noted, and I will rely upon this as well as the knowledge of this Court that I referred to previously, the information provided by the mother suggests there are some concerns about potential lethality. The family consultant said that even though the facts can’t be known, safety must be a priority in this matter. Now, going through the competing affidavits of the parents about these issues would add little to that summary. Obviously, there is no cross-examination and the material hasn’t been tested. There was some independent material put before the Court. I note, firstly, that the Independent Children’s Lawyer had spoken with the children and it was the Independent Children’s Lawyer on that basis who, in fact, had proposed the unsupervised time. The proposal which was adopted by the father.
Of course, the Independent Children’s Lawyer doesn’t give evidence and didn’t specifically state what the children’s wishes were, but said that this was something the Independent Children’s Lawyer considered appropriate. I assume that that has to do with the fact that the children had safely been spending time with the father since April 2018.
The principal additional material relied upon by the mother was a report by Ms F dated 22 June 2019. Whilst there is not a full curriculum vitae available, Ms F does indicate on her letterhead that she as a Bachelor of Social Work and is a Member of the Australian Association of Social Workers, and there is no reason to dispute and no one has suggested that the Court can’t rely upon that. I note that social work is one of the areas which this Court acknowledges may be appropriate as a prior formal qualification area to become a family consultant.
Unfortunately, we don’t know anything more about Ms F’s background. However, she says that she is a trauma-focused psychotherapist and mental health specialist in private practice and the Director of the O Counselling Centre. She noted that the mother was self-referred in February of 2010, which is to say almost 10 years ago, following a miscarriage. She said that the mother had presented on multiple occasions over the last 13 years for assistance with a second miscarriage and issues relating to multiple difficulties “predominantly domestic violence in her marriage to” the father.
The history is given that during the first six years of marriage the marriage was happy and harmonious, but there was evidence of financial abuse emerging when she was restricted from accessing any of her husband’s funds. The mother is recorded as giving a history that after the third child, Z, was born the father’s behaviour changed and she said that during counselling the mother cited numerous incidents of verbal, emotional, social, financial and physical abuse towards her, often in the presence of the children and other family members.
Unfortunately, Ms F doesn’t give dates upon which she was told these matters, but on a prima facie basis it appears that Ms F provides evidentiary support for the allegations of emotional, social, financial and physical abuse towards the mother, often in the presence of the children and other family members, having been occurring over a period of some years. That goes to meet any allegation of recent invention relating to these proceedings.
The history is given that the mother had told Ms F that the father drank on a daily basis, preferring to drink beer and play with his boat than to assist with the care of the children or do jobs around the home. The history was given that the mother said that over time the father started physically abusing her and that this had increased in its level of violence with some occasions resulting in Suburb N Police being called. Ms F says:
Over the years that I have known the family, the children have attended counselling with their mother on several occasions. The children reported witnessing their father drinking while driving, yelling at their mother, throwing items at their mother and ‘yelling at us if we went near him while he was working on his boat’. In the most recent counselling session, 24 April 2019, Y stated that he was ‘scared dad will come and hurt’ them. Y’s aggressive behaviour which he referred to as his ‘angry pants’ part was in direct correlation to this level of fear his father potentially ‘breaking into our house and hurting us and especially mum’. Y stated that he found getting off to sleep difficult and would lie awake listening for ‘noises outside the house’. He said he often watched out the window when the others had gone to bed, ‘I am watching out in case dad comes to break in’.
The first issue I note is that the father suggested or submitted that I would infer from the words, “The children have attended counselling with the mother on several occasions” would indicate that the children have been seen in the presence of the mother, indicating that they merely be repeating what they want her to hear. I don’t know that I can necessarily infer that from that sentence, as they may merely have attended counselling with Ms F having been brought by their mother, which was what must necessarily have occurred given their age regardless of whether they saw her with the mother present. The mother’s submission from the bar table of that evidence was that the children see the counsellor separately.
In any event, it is quite clear from that, although one may need to be careful of the reason why, but accepting the independent person’s statement of what she has been told, that Y had indicated current fear. That is a relevant factor. Ms F noted that during the same session X stated:
I hate my father. He is always drinking. He likes his beer and his boat more than he likes us.
That raises concerns noting that in the same report the expert said that the father was:
Preferring to buy beer: play with his boat in the garage.
Now, they may have formed the same view independently observing the same behaviour, but it does raise some concern about whether X is merely parroting her mother. Nevertheless, however, X stated that she is scared of her father’s aggressive behaviour most particularly when he is intoxicated and is concerned for the wellbeing of them all, especially her mother. It is also noted that X had reported to Ms F that she was being driven by the father on an occasion when he was drinking. On return to the family home she told the mother there was an argument and that X blamed herself for the argument and, “The violence which eventuated, because I told mum about dad drinking”.
Significantly, the expert said:
X stated that she refused to have contact with her father and will not see him on his days of care and access with her siblings. She also refuses to speak with him on the phone.
And later:
X stated that she was concerned about her safety and does not trust that her father will not try to hurt her mother again.
The expert has indicated what the two older children have said, not what the youngest child has said. Ms F did say:
I request that the Court regard the evidence presented by the mother as being a true and accurate representation of her experience and I also request that the Court take the mother’s evidence seriously and as such her safety and the safety of the children be made paramount.
It was said that this was indicative of the capture of Ms F by the mother, noting that Ms F has never seen the father and has only had as between the adults the mother’s version of events, which she has clearly accepted. Nevertheless, on an interim basis without it being tested, what I do have is evidence on the face of it that there were complaints made of family violence over an extended period of time and not merely since separation, and also quotes from Y and X, saying that they are scared of their father and fear him for the same reasons the mother does.
As I have said, the question of whether that is because of what they observed or because the mother has influenced them is not one I can determine at the moment, but when one looks to their emotional safety it is clearly a relevant factor that they feel this way.
Now, the father, obviously, denies all of this and places significant weight upon documents produced by the New South Wales Police. The mother in her affidavit had made reference to certain events, including of strangulation which were picked up in the CDC memo. She has made reference to having spoken to certain police officers and the father submitted that when one reads the relevant aspects of the mother’s affidavits against the subpoenaed documents tendered, particularly the notes marked G4 and G3 (RG being the father’s initials) one would then have grave concerns about the accuracy of the mother’s accounts, particularly in terms of the extent of family violence.
I note that G4 is the COPS entry, …, with a report date of 22 January 2015 and a create date of 23 January 2015. There is a question as to whether this was meant to be what is referred to as the 2013 strangulation event or not. Without being able to test this material further it is not possible to know, but there does not seem to be another event produced by the police and where they have produced their records. I would have expected a record if there had been a prior report.
This is the father’s submission, in any event. The father points to the fact that there is a recorded history of a domestic violence incident. The mother gave a prior history of violence, including stalking and intimidation. It was noted that there were three children, then eight, six and three, “None of which witnessed the incident”, contrary to the mother’s allegations. It gives a history that at about 9.30pm on Thursday, 22 January 2015 the mother and the father have become involved in a verbal argument over financial issues:
As a result of the argument the victim did not wish to remain at the premises and has gone to wake the children up to take them to her mother’s for the night. Whilst the mother was doing this the father has obtained the victim’s car keys and hidden them so she could not leave, which resulted in the mother contacting police.
The father points to the following particular:
During the argument there were no threats of physical violence or damage to any property.
About 11pm on the same evening police attended the location and spoke with the mother. Police asked the mother what she wished the police to do, to which she stated:
I just want my car key. That is all. Police approached the father and requested the mother’s car keys, to which he handed them to police of his own free will.
It is noted in particular that neither party disclosed an offence to police. No such notion was taken. The police note the children did not witness any of the incident and slept through the whole thing. The children were not subject to a domestic and as such have not been included. It was noted there were no injuries, no evidence of effect of alcohol or drugs, no mental health concerns. The father says that this is the contemporaneous and accurate report. He notes that there is no police report of him attempting to strangle the wife, which is the most significant and concerning allegation made.
He also relies upon the event …, a report dated 17 March 2018, create date 18 March 2018, in which time the mother attended the Suburb N Police Station in relation to obtaining information and advice regarding the duration of marriage between herself and her husband. Noting this is the month before they separated. The wife gave a history of the marriage being wonderful at the start and having slowly deteriorated over the last five years:
During this time she claims that the husband has choked her about five years ago. No injuries were sustained, no medical treatment sought, no report made to any authority at that time. Over the last five years the husband has not spoken nicely to the mother. He has at times sworn at her and called her names and at times will drink beer and not help with the housework or transporting the children to and from sporting events.
It was noted in the police report that the wife said that she thought the husband may have borderline personality disorder, although not diagnosed. It was noted that financial hardship may have induced further anxiety about the marriage. It was noted that the wife was currently seeing a counsellor and considering leaving the marriage again. The wife made inquiries about an AVO being sought, but after discussing with police she understands the criteria required for the application granting and:
No threats have been made to the wife or the children and no fears are held by the wife. As such, no application for an AVO has been made. The wife did not wish for police to speak with the husband as no offence had occurred. She wanted to make a report only. The wife signed the … saying she did not wish for police to investigate the report. The report had been made for reporting matters only and no further file by police as no offence detected.
I note when I have been quoting these rather than using the police reference of “POI” (person of interest) and “VIC” (victim) I have been referring to wife and husband.
The husband says that when the Court looks at that objectively, the Court would place no weight upon the more serious allegations of family violence. He says this was a tempestuous relationship and that a true reflection of the situation is as set out in the police report and that if one looks at that, although certainly by no means does the father suggest that his conduct overall in the relationship was ideal, he says it was tempestuous, it was mutual, but there was certainly none of the attempts at strangulation or other serious physical violence that has been alleged, and as such that there is no risk to the children, no proper foundation for supervision and having regard to the independent material and noting the ICL supported unsupervised time, the Court would be comfortably satisfied that that would be the appropriate course.
That is the critical evidence that I have considered. I have read the other materials, but that summarises the heart of the issue. I note that the application is one for parenting orders as defined in part 7, division 5 under section 64B. I note the Court’s power to make such orders in 65D. The paramount consideration is the best interests of the children. See section 60CC(a) and 65A(a). And the primary consideration, as noted in 60CC, and also supported by 60B, are first and foremost to protect the children from physical and psychological harm or being subjected or exposed to abuse, neglect or family violence, and secondly after that to support the benefit to the children of having a meaningful relationship with both parents.
I emphasise that the issue of the children spending time with the father is not for his benefit, it is because it is recognised that so long as it can be done safely it is in the children’s interests to spend time with him. These are the twin pillars as referred to in Mazorski & Albright[2]. I note the additional considerations in section 60CC(3) and I have considered them, but as the Full Court noted in Banks[3] in any particular case the issues are defined by the parties. And the question here really is the question of risk and unacceptable risk and the assessment of whether or not the father poses a risk to the children if with them on an unsupervised basis.
[2] Mazorski & Albright (2007) 37 Fam LR 518.
[3] Banks & Banks (2015) FLC 93-637.
The principles that govern this matter, because it is an interim hearing where there is only limited material since the matter has not been on foot long, are as noted in Goode & Goode[4], the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. I have not been asked to deal with parental responsibility and will not address it.
[4] Goode v Goode [2006] FamCA 1346, [81].
Firstly, the court is required to take a conservative approach aimed to meet the primary considerations. I note, as noted in Eaby & Speelman[5], that the fact that facts are disputed:
Does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
[5] Eaby & Speelman (2015) FLC 93-654.
I also note that what I am doing today is, as the Full Court said in Marvel & Marvel[6], making orders which are:
A necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.
[6] Marvel & Marvel (No.2) (2010) 43 Fam LR 348.
But, again, it was emphasised that a conservative approach must be adopted and that any factual findings to be made in an interim hearing should be:
Couched with great circumspection.
In that regard, I note that it is not reasonably open to the Court to make any factual finding about whether or not the father has engaged in family violence of the kind alleged. The police material clearly raises genuine issues around whether or not the mother should be accepted. However, the Court has seen cases where for one reason or another victims of serious family violence do not make reports to police or make reports to police and because they are ashamed or for other reasons do not report the full extent of the material. That is something that is impossible to test and deal with on an interim basis.
Although I do give weight to and consider the police material, it would certainly not be open to me to either find that the violence did happen as alleged by the mother or that it did not happen as alleged by the father or to make any attempts to find that there was family violence, but at a particular level.
I think I can fairly find that there is a good reason to believe that X and Y are currently not comfortable with their father. That is not just because of what Ms F reports, but in particular because of the fact that, as the father said, X recently told him to “die in a ditch” and that Y went so far as to lie to him and tell him that sports practice was cancelled when, in fact, it was not cancelled and Y was attending.
Now, that, of course, does not address the question, which I cannot answer, of whether that behaviour is a consequence as the mother alleges of the children having over a long period of time watched their father’s violent behaviour and, perhaps, now at the age of 10 and 12 having come to understood the true nature of it, start to react against it now that they are free of it, or, as the father says, because they are being intentionally alienated from him.
I cannot make any finding at the moment even in the most cautious way about that. I note that I am required, consistently with the authorities I have quoted, to undertake such risk assessment as I can on an interim basis, and whilst there are many statements of the principles, for example, the Full Court said in Deiter & Deiter[7]:
The assessment of risk is one of the many burdens placed on family law decision-makers. Risk assessment comprises two elements. The first requires prediction of the likelihood of the occurrence of harmful events and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submissions made. We accept, however, it is also a question of degree depending upon the evidence that is before the court.
[7] Deiter & Deiter [2011] FamCAFC 82.
And in SS & AH[8], the Full Court noted that:
Apart from relying upon the uncontroversial or agreed facts, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact in the event that a controversial assertion is acted upon or rejected is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[8] SS & AH [2010] FamCAFC 13.
That is the principle which, together with the principles that govern the cautious approach, must be taken upon an interim hearing, which binds me as a judge at first instance in this court hearing an interim application in a parenting proceeding which has only recently commenced.
I give very great weight to the position taken by the Independent Children’s Lawyer, noting that this lawyer is an employee of the Legal Aid Commission of New South Wales and has no animus to either of the parents and is devoted solely to promoting the best interests of the children, and that having spoken with the children she has indicated that unsupervised time is appropriate.
It is not uncommon, unfortunately, for children in this position to tell each parent precisely what they want to hear. If the children know that the mother is afraid of the father and she asks them quite honestly, “Do you want to go spend time with him?”, they will understand that she is saying to them, “Do you want to go and spend time with someone who I consider to be a monster and a threat to me?” And they are likely to say, “No”. If they are asked by the father, “Surely you want to spend time with me”, and if they love him as well, which generally children do love both their parents, they will understand that he is saying, “If you don’t want to spend time with me, when you speak with me I will take that as an outright rejection” and they may tell him that they want nothing more than to spend time with him.
It is not at all surprising that people will sometimes have different information given to them but in this case, for whatever reason, it seems that the children are giving the father relatively consistent information that they do not want to spend time with him. I must place great weight upon that. X is 12, which is a particularly difficult age range she is at and entering into where she is developing her own autonomy and where the willingness to just accept that your parents know best starts to be challenged and where pushing her very hard against her desires can have two problematic effects. One, it can be traumatic for her. Secondly, it can, in fact, undermine the process of helping to redevelop a relationship with the father.
Y, obviously, is not happy either as he has been willing to lie to the father.
The youngest child will doubtless be influenced by the older children as much, if not more, than by their mother. Weighing all of these things together and doing the best I can, it seems to me that although I am satisfied the father has raised, with the police material in particular, real concerns about the nature and extent of the mother’s allegations, I believe that the authorities bind me to take, at this stage, a conservative approach in the short term until the situation can be better investigated.
I note that the parties were discussing getting a single expert. If that is happening expeditiously I will consider structuring my orders around that and I will make some inquiries about that at the end of the judgment. If that is not occurring, then I have in mind that I will have a Child Inclusive Conference so that I can seek to obtain some material directly from the children unfiltered by either parent and also unfiltered by Ms F. I am not suggesting that Ms F would intentionally do anything wrong, but only in the context of her being the mother’s treater and the children, if they are aware of that, may not be as candid with her as they might be with a person who is entirely independent.
Given that I am bound by those principles to be cautious, it seems to me that the appropriate approach is to adopt the mother’s recommendation for supervision so that the children are, at least, spending some time with the father. I note that the mother’s recommendation excludes X and I have given consideration to that. I think that on balance since the other two children will be going and since it will be supervised and since she is still 12, not quite in year 7, not quite 13, and since the ICL thought it was worth pressing the issue, having spoken with X, I think it is appropriate for X to take part as well. In those circumstances in addition to the orders I have already made, I will make these orders.
I will not order the children not to see Ms F. I’m reluctant without further information to take away from the children a person who has been, as I understand it, counselling them until I am satisfied that they are in the Anchor Program, perhaps, and also find out what the Anchor Program people think, if they wish to take a position. But what I will do is further orders around how this occurs. That seem to me balances the concerns raised by the father that Ms F may have been seeing the children with the mother or would have been captured by the mother, in a way which is cautious but allows the counselling to continue on a one-on-one basis, and we will see what happens with the Anchor Program.
Now, I will just note that because this is a first return, in effect, before me and I have made cautious parenting orders on very limited information, the parties should not consider that this is now a concluded matter. It is not the case that these are the orders that are necessarily going to be in place for a long period of time.
I refer again to what was said in a number of cases but, in particular, in Marvel & Marvel[9], that these are a temporary measure and as the situation evolves the Court will be open to reconsidering what is in the best interests of the children. If the supervised time goes well and if the Anchor Program goes well and if the ICL continues to believe that unsupervised time is appropriate after speaking with the children, then the court will be open at an appropriate time to revisiting this issue. So that no one should spend time trying to argue at some later stage that this has been a determination to which a Rice & Asplund[10] would apply. I will make orders, which will be published later today, in accordance with what I have just indicated subject to a couple of things, which I will now hear the parties on and subject to those matters those are my reasons.
[9] Marvel & Marvel (No.2) (2010) 43 Fam LR 348.
[10] Rice & Asplund (1979) FLC 90-725.
[Discussion with parties.]
What I will do is give a mention date in late March, 23 March. 9.30am for mention only, by which stage we should all have the CIC which I will order. I will note again I am going to treat this as if part-heard with preliminary orders.
I will also make a note that if the applicant is in breach of the Orders of 4 November in respect of payments of the mortgage and related costs at the next mention date, the Court will consider listing the respondent’s application for the sale of the former matrimonial home.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge B. Smith
Date: 2 April 2020
Key Legal Topics
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Breach
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