Granger and Derwent - [2010] FMCAfam 1511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANGER & DERWENT

[2010] FMCAfam 1511

FAMILY LAW – Father brings interim application to cease supervision and move to unsupervised – interim orders by consent for supervised contact – father has made threats to drown the mother and child – father has breached domestic violence orders – supervision at a contact centre – father says he has completed several courses and read books on child development – and tried to address his anger – father’s counsel describes father as “saying stupid things” – father says supervision centre too limiting – application to move to unsupervised dismissed – issues which required supervision are grave – threatening, harassing, physically violent behaviour towards the mother and child and will only be resolved at a final hearing.

Family Law Act 1975

Goode and Goode (2006) FLC 93-286

Applicant:

MR GRANGER

Respondent:

MS DERWENT

File Number:

TVC 1131 of 2009

Judgment of:

Willis FM

Hearing date:

16 September 2010

Date of Last Submission:

16 September 2010

Delivered at:

Mackay

Delivered on:

16 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Betts

Solicitors for the Applicant:

Bill Cooper and Associates

Counsel for the Respondent:

Mr Clark solicitor

Solicitors for the Respondent:

Eureka Legal

Independent Children’s Lawyer

Mrs Jensen – Legal Aid Qld

ORDERS

Father’s application to move to unsupervised time is dismissed.
An updated Family Report be prepared by Mr H one month prior to the date set for trial. The updated Family Report is to be arranged by the Independent Children’s Lawyer and it is requested that the Family Report writer interview the child.
The Independent Children’s Lawyer is granted leave to provide a copy of the Subpoenas to the Family Report writer.
Upon the Undertaking of the solicitors for each party and the Independent Children’s Lawyer are granted leave to photocopy all of the Subpoenaed material for the purposes of briefing Counsel upon their written Undertaking that the photocopied material will be destroyed or returned to the Court at the conclusion of the matter and will not be used for any other purpose.
That the Application be listed for three days hearing on a date to be fixed in Mackay.
That the Applicant file and serve any Affidavit of evidence in Chief to be relied upon no less than 28 days prior to the date set for hearing.
That the Respondent file and serve any Affidavits of evidence in chief to be relied upon no less than 18 days prior to the date set for hearing.
The Independent Children’s Lawyer file any Affidavit or reports no less than 18 days prior to the date set for hearing.
That each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:
(a)The final orders sought;
(b)A chronology;
(c)A list of documents intended to be relied upon at trial; and
(d)Statement of evidence which they say supports the principles contained in section 60 CC.
That the Applicant pay the hearing set down fee or file an Application for waiver to be exempt from the hearing fee no less than 7 days prior to the date fixed for hearing.
No party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court.
That the Application be listed for a Compliance Check to ensure the matters readiness for trial on a date to be fixed by way of telephone.
A copy of the transcript including reasons for Judgment be placed on the file and be provided to the parties.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MACKAY

TVC 1131 of 2009

MR GRANGER

Applicant

And

MS DERWENT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application in relation to interim orders. The application has been set down today for an interim hearing on the basis that at the last mention of this matter an oral request was made by Mr Betts of counsel who appears on behalf of Mr Granger, the applicant, to alter the interim orders that were made earlier in the year in relation to the child of the relationship. Ms Derwent is the respondent and the child is [X], born in 2006. [X] is now independently represented and Ms Jenson is the independent children’s lawyer. She is present today.
The orders that were first made in this Court were orders by consent, and those were orders for the appointment of an independent children’s lawyer and a family report. Importantly, the orders by consent were that the child spend time with and communicate with the father on at least two occasions per week, supervised at the [omitted] Contact Centre or otherwise as agreed between the parties. Those orders have been implemented and acted upon and parties. I have made some further procedural orders on 13 April 2010 and some orders on 11 August 2010 listing the matter for an interim hearing today.
The family report is now prepared and released, and that is a report prepared by Mr H. The material relied upon by each of the parties is as per the transcript and the father effectively has filed an affidavit on 27 August 2010 deposing to certain matters in relation to him undertaking courses, reading books and doing an anger management course. The mother relies on her material which is her original initial application of 30 November 2009 and her initial material. Mr H’s report is filed on 22 April 2010. I have also had regard to subpoenaed material from the Queensland Police, and that material relates to issues of domestic violence and the father’s conduct in this matter.
Mr Betts of Counsel for the father makes very forceful submissions that the time has come for the Court to alter the interim orders that have been in place. Mr Betts says that the father has been well-behaved for some time now and that the supervision order was well-placed at the time, and that now some nine months has passed and that the Court should accept that the father now does not present a risk to the child. He refers me to the father’s material. The father’s material filed on 27 August 2010 tells me that the father has been having his contact at a supervision centre. It tells me that the father has completed a course at Lifeline, and the course at Lifeline was completed in, I think, August/June 2010. Mr Betts also draws my attention to the fact that these courses were started even before the orders were put in place.
There is material attached to the father’s affidavit confirming that he has done a post-separation cooperative parenting program conducted by Lifeline, and that seems to have happened in the period between January and June. That is a Lifeline course of six sessions at three hours each, and completed on 25 June 2010. The other course – that goes from 22 December to May 2010. As I said, there is also an anger management course. The father has annexed a certificate saying that he has completed constructive anger management. He commenced in June 2010. That, again, is conducted once a week for three hours. He annexes a certificate dated 9 August 2010 certifying competition of that course.
The father also deposes in his affidavit that he has read several books and taken up Mr H’s suggestion of informing himself more about child development, and in his material he sets out what he has learnt from the various courses and he says that he has obtained various brochures as well. Sorry, it was the independent children’s lawyer suggested that he inform himself on early childhood development, and particularly the needs and expectations of [X]. He lists out two books that he has read in relation to child development and then sets out at length in what I accept is a very sophisticated and articulate language all of the aspects of developmental matters that the father says that he has now learnt.
The father is seeking orders that until such time as a final hearing occurs that [X] spend unsupervised time with him from 9 am to 3 pm on Saturday and 9 am till 1 pm on Sunday for a period of one month, and then 9 am to 5 pm every Saturday for a period of a month, and then 9 am to 5 pm on a Saturday and 9 am to 5 pm on a Sunday every weekend for a period of one month, or if this is considered inappropriate, and doesn’t allow [X] to spend time with her mother, then that could be every alternate weekend. Mr Betts says it then progresses:
“Overnight visits to then commence when [X] spends one to two nights per week with me or every second weekend”.
The submissions made by Mr Betts ,who concedes that the father’s behaviour – that his conduct has not been exemplary in the past –has done some analysis and works out that he spends three hours a week out of 160 hours. Or then, converted into percentages is 1.7 per cent - “Is that meaningful?” Mr Betts submits to me that save for the matter of risk there is no basis for the supervision. Mr Betts describes the father’s conduct in the past as “saying stupid things which he has freely admitted,” and submits to me that there it is now time to loosen the apron strings and for the mother to stop being so restrictive. Mr Betts raises with me that the father also has some irritation with the whole arrangement, that it is artificial, that he has no hope of developing a meaningful relationship in a contact centre.
Mr Betts has made submissions that the father points out that the mother’s current boyfriend has a lot more time with the child than does the father, and “what do we know about the current boyfriend.” The father also tells me that he is enrolled in a Triple P parenting program, though he has not started it yet. Mr Betts makes the submission that the domestic violence in this matter is not at the extreme end and that there is no basis now for the father’s time to remain supervised because it has been supervised long enough.
The mother is seeking orders that the application to change the orders be dismissed and that supervision remain until the matter is fully ventilated at a final trial, and that the orders remain unchanged.
The independent children’s lawyer, Mrs Jenson, has helpfully provided me with the subpoenaed material and has explained the options to me as she sees them. Moving to the subpoenaed material which I have been provided with to put this application in some context. Firstly I have the father’s criminal history which goes back to 1979 and includes: offences of stealing, offences of possessions of drugs and offences of breaching a fine option order – domestic violence, breach of custody conditions, possession of dangerous drugs in 2005, breaching a probation order in 2006 which relate to the possession of dangerous drugs and utensils. And in 6 October 2009, breach of the DVO order which is the DVO order currently in place in this matter.
The mother obtained a domestic violence order on 13 January 2009, which is prior to the parties separating, and they got back together for a short period and then separated again. The father has breached that order, I can see, on at least one occasion, and the orders are current. The domestic violence that was used as the basis for the mother’s application is deposed to in her material in less fulsome terms. But as reported to the police on 8 January 2009, and this is the mother’s report, that:
The couple’s child has awoken and been crying loudly, to which the respondent has become agitated at the aggrieved. The aggrieved has then risen and taken the child to the kitchen and the respondent has remained in bed. During this time the respondent has continually yelled at the aggrieved about the child continuing to cry. The aggrieved has then sat down on the couch for breakfast with the child on her lap. The respondent has then approached the aggrieved from behind and slapped her with an open hand three times to the back of her head, causing immediate pain. The aggrieved has immediately retreated from the lounge room with the child and has returned a short time later where she attempted to call police. While doing so the respondent has again approached, grabbed the phone from the aggrieved’s hand, not allowing her to make a call.
During this and previous altercations the respondent has stated, “I’m going to end up hurting you,” and said to their daughter, “[X], you are nothing but a little cunt. Nothing but a little fucking bitch.” The aggrieved stated that she felt intimidated and threatened for her and their child’s safety. The aggrieved has left the address and later attempted to call the respondent, during which the respondent has told the aggrieved to, “Fuck off, you’re not coming home.” The aggrieved has sought immediate accommodation at an address known to the police so she does not have to return home. The aggrieved stated to police that they have had several other similar arguments over approximately the last two years and that the respondent often threatens to hurt the aggrieved. This is the first incident that the aggrieved was able to recall in which actual violence took place.
That report not only was the basis of a domestic violence order. The police have – I noted that the police and the aggrieved believe that domestic violence is likely to reoccur again if a domestic violence order is not taken out.
The aggrieved states that the respondent is jealous of the amount of time spent with their child and not with him, even though they reside together as a couple. The aggrieved states that the respondent’s aggressiveness is increasing towards her and the child and this is likely to continue unless a DVO order is in place, that first incident then lead to the police filing an emotional abuse form in relation to abuse that occurred to the child.
The next incident is reported on 28 July 2009 and this constituted a breach. The circumstances of this breach as placed in the mother’s material were contested by the father, though, I am told that he was convicted of a breach. The breach is alleged to have occurred when the subject in this matter, being the father, has approached the informant while she was driving along a particular street, [street omitted]. The subject has physically jumped in the path of the informant’s vehicle causing the vehicle to stop on [street omitted], the subject has then entered the vehicle and began verbally abusing and threatening the informant. The informant’s three year old child was in the back seat at the time.
The subject has made several attempts to physically remove the keys from the vehicle (and the father tells me today that he contests that such incident occurred) that he was threatening the informant that if she did not let him see the child he would kill them both. The subject has decamped from the vehicle and the informant has left the scene. The father tells me today that the mother drove him home after that. There is again a reference to assessing the risk to children and the matter was referred to the Child Protection Unit who have concluded that there was no physical assault on the mother.
The Mackay Police SCAN representative attempted to contact the aggrieved, however, he was unsuccessful and noted there was a DV order in place and that the mother has demonstrated that she is acting protectively by reporting this incident and that, again, the mother is acting protectively towards herself and the subject child, and unless the current situation changes and the respondent returns to reside with the aggrieved and the child, there are no concerns for the safety of the child. The report goes on to note that the mother has informed the police that since the order has been in place the father has been continually phoning. He has been harassing her, making threats on several occasions to kill both her and the daughter. The most recent of these phone calls was six weeks ago when he threatened to drown them both.
The suspect has also kicked and damaged the victim’s door in previous incident not notified to the police. There is a further report on 5 August 2009 where the father attends at the mother’s workplace and allegedly spoke to the mother’s boss and used abusive language and swore at her. And in the incident which the father jumped into the car, the records show that the child was screaming out, “Mummy, I’m scared. Mummy, I’m scared.” Those are the sorts of allegations that have been made against the father. In addition to those, one of the allegations and, in fact, it was confirmed, that the father has actually said to the mother that he was going to drown her and the child. Mr Betts says that the father said some stupid things and, in any event, time has passed and its time to move forward so that the father can start having a meaningful relationship.
With the nature of the conduct that has occurred and the threats that have been made, I do not agree that the time has come to move on. The issues that I see in this matter as being relevant in a trial are not simply whether or not the father said some, “Stupid things.” This matter contains more complicated and diverse issues. There are issues that I see of not only all of the domestic violence, abusive behaviour, crude and obscene language and actual violence, and the case law is very clear that, for instance, as set out in the matter of Jaeger that this Court is entitled to understand the nature and circumstances of any domestic violence. There is acceptance by the father of some of this violence and there is a breach of a domestic violence order.
In addition to the matters that I have referred to, the father has attended at the [omitted] Relationships Centre in May 2009 and made and been, I think it was filmed on security cameras, but, in any event, doesn’t seem to deny, and if he does there is an allegation that there was verbal abuse, threats and language such that the mediation didn’t occur. There is an incident referred to by the mother at paragraph 21 of her material, in which she took the child to visit the father and she was trying not – did not want to deny him time with the daughter. Her phone rang, she stepped outside to take the call, the father then locked the door and wouldn’t hand the child back.
Following that incident that the mother phoned again to say that she wasn’t taking the child over, and that was when the father responded that if she didn’t bring the child over he would come over and drown them – drown them both. Mr Betts has said to me before that the father has said stupid things and that people say stupid things. It is true that people say stupid things when there are difficult situations. There are not a lot of people that threaten to kill children. The father has done that and all of those allegations need to be seen in the light of the issues in Mr H’s report. The issues in Mr H’s report deal with the father’s belief that the mother was dominated by the child. The mother says that the father was against her breast feeding and that he was irritated that more time was spent by the mother with the child than with him and that caused his temper to get worse.
She described in paragraph 11, incidents where the child was becoming withdrawn and somewhat fearful of the father including running and hiding in her room when the father came home. The evidence of Mr H is that at the contact centre that the child has been reported as running and hiding when the father appears there. So an issue obviously at the trial is whether or not anything other than supervised, or even supervised, is for the benefit of this child and in [X]’s best interests. If there is benefit to the child, and bearing in mind that the mother’s application is that there isn’t, how that should unfold and how that will affect the child if she has been, as she has, directly exposed to family violence.

The other issue that seems to me in this trial is the father’s persistence, and the question of his somewhat intrusive behaviour in approaching her at in her car, at work, in the street, his resentment of the child, his reference and the mother’s evidence that he constantly refers to the child in the crudest possible terms and he’s made threats to kill the child. There are the child’s own issues of her behaviour at the contact centre, her screaming in the back of the car, “Mummy, I’m frightened.” And then, of course, another big issue for the trial is the mother’s own anxiety, which is a most relevant factor in any matter however it has occurred.
I heard the submissions that the contact centre is most inappropriate and doesn’t serve a purpose. I have a different view about the contact centre. At this stage, the contact centre is, in my view, the most appropriate place for contact to occur. There are a variety of options in terms of different activities that can be carried out. It provides the father an opportunity to be observed behaving appropriately and engaging with the child. At this stage the evidence I have is that the child isn’t responding in an overly warm fashion to the father and, as I said, has run and hid on his arrival. The father also, rather than becoming irritated by what he perceives as a constraint, in my view, ought to be using the time wisely so that he has proper evidence when it comes to a final trial from people independent such as the supervisors, as to his conduct.
The suggestion was made to me that I might have the father cross-examined in relation to his alleged new knowledge taken from his courses. I agree with Mr Betts and I am not going to, and did not allow, a cross-examination simply on that point because (a) that once you start cross-examining it is too difficult to stop in a matter like this where one issue is linked to another; (b) that would be unfair to the father because the mother would also have to be cross-examined because he doesn’t accept everything that she’s saying in any event. Also, I am not, at this stage, satisfied that all of the matters that I have just canvassed are adequately dealt with by the father’s engagement in some courses and reading books. Nor am I satisfied that the risks will ameliorate simply by the passage of time.
I do not diminish, for one moment, the coursework that he has done, but with all of the issues that are alive in this matter, simply saying to me, “I’ve done a course. Now I can move back to what I would have been having before,” to my mind is not an answer. It is not to the point that the mother’s new partner is spending more time with the child that the father. The father is the person who has created the risk, he is the one who has made the threats, he is the one who has breached the domestic violence order.
This is an interim hearing under Part VII of the Family Law Act, and the first of the two primary considerations set out in S 60CC is the need to protect the child from physical, emotional and psychological harm. That is one of the twin pillars, the other being the benefit to the child of having a meaningful relationship with both parents. In this matter I am not at all convinced that to move away from the orders that I have in place at the moment, without having a trial, represents the best interests of this child or makes the relationship in any way more meaningful. In fact, to my mind, at this stage, the risks that have always been there still remain and to move to a different form of contact without the issues being properly ventilated which will only occur at a final trial, will likely expose the child to violence, abuse and terrifying threats. The mother is understandably anxious about the threats that have been made by the father. The issues are far too grave and serious for a decision to be made to move away from supervised to unsupervised. There is no significant change of circumstances since the making of the interim orders which has occurred. I do not regard the fact that the father has done courses over a few hours and the reading of books, as evidence of a significant change in circumstances such that I would re-hear the matter or move to unsupervised. To do so would expose the mother and child to too great a risk.
So in relation to the application brought by the father to move to unsupervised contact, I dismiss the application.

RECORDED: NOT TRANSCRIBED

A copy of today’s hearing, including my ex tempore reasons be placed on the file and made available to the parties.

RECORDED: NOT TRANSCRIBED

So the ICL is granted leave to provide the subpoenaed material to Mr H, and each of the instructing solicitors have leave to photocopy the subpoenaed material for the purposes of briefing counsel on their undertaking that the documents will be either returned to the court or shredded at the conclusion of the matter, and that they are not to be provided to any other person for any other purpose.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: 6 April 2011