GRIGGS & MAJOR

[2019] FCCA 1409

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIGGS & MAJOR [2019] FCCA 1409

Catchwords:
FAMILY LAW – Best interests of the child – where allegations of family violence made by both parties – right to a meaningful relationship with both parents – where allegations not made out – Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MR GRIGGS

Respondent: MS MAJOR

File Number: DNC 345 of 2018

Judgment of: Judge Young

Hearing date: 16 April 2019

Date of Last Submission: 16 April 2019

Delivered at: Darwin

Delivered on: 16 April 2019

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Gray

Solicitors for the Respondent: Grays Legal

BY CONSENT UNTIL FURTHER ORDER

1. That order 2 and 3 of the Orders made 27 August 2018 be discharged.

2. That changeovers shall occur as follows:

   (a)At The Store, Suburb A each Saturday at 5.30pm; and

   (b)Each Tuesday at 8.45am at the entrance of the The Hotel, Suburb B, Darwin.

3. That the parents will:

   (a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

   (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change; and

   (c)Advise each other of any medical or other emergency involving either of the children whilst in their respective care.

4. That each parent be restrained and an injunction granted restraining each of them from the following:

   (a)Communicating except in relation to the matters concerning the child;

   (b)Denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family;

   (c)Exposing the child to family violence, including verbal abuse such as yelling at the child; and

   (d)Physically disciplining the child.

5. That within 7 days, the parties enrol in and complete within 6 months (or as soon as possible), ‘Bringing up Great Kids’ with Relationships Australia.

AND THE COURT ORDERS:

1. The child spend time with the Mother as agreed between the parties and in default of agreement, from 5:30pm each Saturday to 8:45am the following Tuesday in each week.

2. That pursuant to s68L(2) of the Family Law Act 1975, the interests of the child [X] born … 2016 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child’s interest.

3. That forthwith upon appointment by the said northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within 7 days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That the matter remains listed for trial commencing 28 August 2019 at 10.00am (allowing two days).

7. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parents adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 345 of 2018

MR GRIGGS

Applicant

And

MS MAJOR

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting dispute concerning [X], who is two years and four months old.  The parties first met in Country D where the father was managing a business and the mother was a young woman living in a neighbouring village.  There is a difference in the ages of the parties of 35 years.  The father is presently 59 and the mother is 24 years old.  The father is originally from Country E and the mother is Country D.  She may be an Australian citizen now, I’m not sure, but she was born and raised in Country D.

3. The significance of that relates to some of the allegations that each made against the other.  The parties had a relatively short relationship.  They met in Country D when, on my calculation, the mother was probably 18 or 19 and after, it seems, a relatively short relationship [X] was conceived and born.  The father, in his affidavit, says the mother came from, as I say, a village and as he described it, “She lived in a traditional mud-walled hut”.  The father has made allegations about the mother’s competence and indeed her mental health among other things.

4. The competence issue arises in the context of an allegation by him that the mother is unresponsive or inadequately responsive to what he says is the child’s asthma.  I might note that, on my reading of the material, there is not a frank diagnosis of asthma for this child but it certainly appears to be a possibility.  The father said in his affidavit material that, as an example of her incompetence or cultural limitation, she does not or has not responded appropriately to the child’s medical needs. He makes an allegation that the mother believes in sorcery but not modern medicine.

5. Obviously, I cannot resolve any of those issues on this interim hearing but the relevance of it is that in the family report the consultant was of the view that the father was unremittingly disparaging of the mother as a mother, as a competent individual and as someone incapable of taking advantage of the opportunities that life in a developed country offered, for example, access to good quality medical care, because of her cultural limitations, background and lack of education.  The family consultant was concerned about whether that was an accurate portrayal and was concerned that there were indications that there were what she described as “a power imbalance between the parties”.

6. Her view was that the competing allegations of parties about family violence, which have played a central part in this case, needed to be approached with some caution.

7. The episode that precipitated the separation of the parties occurred in July 2018. The father, who made the application to the Court, alleged at that time that the mother had seriously assaulted him with a boot, leaving him injured and bloody. There are photographs to support that he was certainly bloody.  The mother was charged with an assault and that assault charge is to be heard in April, this month, in the Local Court.

8. The father has added to his narrative in the case not only that the mother is incompetent but that she is violent. He says he has been the victim, largely a passive victim, of the mother’s violence.  In addition, he made allegations about her mental health.  The allegations are serious and at the heart of the allegations the father makes against the mother. It is that background which led to, apparently, either the authorities, the police or child welfare, it is somewhat unclear, initially placing the child with the father on separation when the mother left the former matrimonial home.

9. These concerns were at the heart of the allegations made by the father when the matter came into this Court, that is, that this child was at serious risk of harm in the mother’s care.  It was not really in dispute that up until the separation in July last year, some nine months ago, that the mother, if not the primary carer, was at least an equal carer of this child.  The circumstances and the vehemence of the allegations, the seriousness of the allegations, particularly the very grave allegation that the child was at risk of harm in the mother’s care, have led to the present circumstance which is that under the present orders the child does not spend overnight time with the mother but, rather, has spent a number of hours each second day.  I made those orders for the reasons that I have just described.

10. The mother has said that the situation is not like that but, rather, that she has been the victim of family violence equally, if not more so, and that the assault or the striking of the father that took place in July, apparently with a boot that left him with a bloodied face occurred while she was defending herself as the father attempted to choke her.  I cannot resolve those issues on an interim hearing and I will not attempt to.  That will be something for the Local Court.  However, the significance of that background is explored in some detail in the family report.

11. The family report writer, as I have mentioned, was far from convinced that the narrative of the father ought be accepted.  The family consultant thought there were indications that, in reality, it was the mother who was the victim of family violence and she, the family consultant, said that she based that view on the fact that the mother’s description of the relationship was indicative of coercive and controlling behaviour, that is, the definition of family violence in the Family Law Act, rather than the father’s description which really related to what he said was the mental illness of the mother.

12. The family consultant, as I say, was sceptical of those aspects of the father’s narrative, particularly those aspects that emphasised that he was a victim of family violence at the hands of the mother; secondly, that the mother suffered from a mental illness and, thirdly, that the mother was an incompetent individual or culturally at loss in some way living in Australia. The family consultant observed that the mother was, on the contrary, in her assessment at least, intelligent, resourceful and resilient.  The family consultant was so concerned by the discrepancy between what she observed and what the father said was the case that the family consultant was of the view that there were indications that the father was so disparaging and dismissive of the mother, and indeed hostile to her, that he saw no real role for her in [X]’s life.

13. In other words, the family consultant was concerned that such was the seriousness of the hostile view of the mother held by the father that he may not encourage a relationship between the child and the mother and on the contrary, discourage such a relationship.  She, the family consultant, said if that were to be borne out in evidence at trial, the Court would need to consider whether or not there would be an order that the mother should have sole parental responsibility for the child and the child spend only daytime with the father.

14. This is a case that involves very serious allegations.  Allegations that have been made by the father in particular which of their nature have seen a very significant limitation on the child’s time with her mother, allegations which, if found to be untrue, would in my view necessarily lead a court to consider the matters raised by the family consultant. 

15. It is an interim hearing, I am not going to make findings about that because I cannot.  However, the significance of that is as follows. On an interim basis, the parties have narrowed their differences in this way:  in line with the recommendation in the family report, which is that the child should spend a minimum of two nights a week with the mother, the father has proposed that the child spend from 8.30 am on Sunday to 8.45am on Tuesday with the mother.  That is a period of about 48 hours a week with the mother, albeit it consists of two nights but one whole day.  The mother’s proposal is that her time should begin at 5.30 pm on Saturday evening through to Tuesday 8.45 am.

16. The father says that under the mother’s proposal, because he works, apparently, during the week, he would only have one full day on a Saturday weekend day available to be with the child.  I am a little uncertain about that submission as I had understood that the father was self-employed and was developing a business.  I am not satisfied on his material that he has such inflexibility about his weekends or of the disadvantage he says he will suffer or the child will suffer in that case. 

17. I should say more about the family consultant’s observations of the child with each parent.  The child with the father was observed to be relaxed and calm in her father’s care and the father’s approach to [X] was “gentle, kindly and attentive”.  The child was observed to explore the playroom where the observation went on and played by herself confidently enough and engaged with the father as she wished in play.  The family consultant did not observe any issues of concern.

18. In relation to the mother, the family consultant observed that, initially, [X] was a little unsettled when her father left the room but she appeared happy to see her mother and gave her mother a hug on first contact.  For a short while, however, [X] pointed to the door by which her father had left.  The consultant observed that the mother reassured her by saying, “It’s okay.  Daddy is coming back”.  After a few minutes, [X] relaxed and commenced enjoying herself in her mother’s company.  It is said that the mother actively engaged in play with the child and the child responded enthusiastically to the mother’s invitations to play with her.  It was observed that the mother’s approach to the child was one of “affection, gentleness and playfulness”.  I also consider this is of some significance:

    [X] constantly sought physical closeness to her mother and was observed climbing into her mother’s lap and cuddling into her body while Ms Major looked at toys and books with her.

19. Further, the consultant did not observe any anomalies or issues of concern during that observation.  The counsel for the mother said that that passage indicated that this was a child in need of greater closeness and contact with her mother.  I agree that that submission was there to be made and it may well indicate that.  I cannot find that at this stage.  Similarly, Ms Gray for the father pointed out that the observations of the child with the father indicated that the child was securely attached to her father, and I suspect that submission is also correct, though I make no particular finding about strength of attachment of this child to either parent.  There are indications, I think, that the child has a close relationship with both parents. 

20. I am satisfied that there is material before me which, however, suggests that the very dramatic interruption between the child and the mother over the past nine months may not have been justified.  I cannot make a finding about that but it is an issue of serious concern to me.  Be that as it may, the father’s proposal that the child spend two nights a week with the mother is, it appears to me, inconsistent with a genuinely held fear that the child may be harmed in the mother’s care.

21. In the circumstances, and bearing in mind that a trial is only some four months away, I consider that the child should spend significant and substantial time at least with the mother. I take into account, in particular, section 60CC(2)(a) that the primary considerations in assessing the best interests of a child are the benefit to the child of having a meaningful relationship with both parents. In the particular circumstances of this case, I consider that [X]’s right to a meaningful relationship with her mother requires a significant increase in the amount of time that [X] spends with her mother.

22. I am not satisfied that subsection (2)(b), that is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, is of the significance that it may have appeared at an earlier point in this case.  There is obviously a need to protect this child from being exposed to conflict between the parents but the orders I propose to make will ensure that there is minimal contact between them.

23. I have regard to each of the matters in section 60CC, the additional considerations in subsection (3), and in particular in relation to (b) I am satisfied that this child has a close relationship with both parents. In relation to (f), the capacity of each of the child’s parents, in my view the question marks and, indeed, allegations about the mother’s capacity or lack of capacity have been addressed squarely and, in very large degree, answered by the family report. On the other hand, some other questions about the father’s capacity as a parent have been raised, particularly whether or not he is likely to be willing to properly encourage a relationship between the child and the mother.

24. In relation to (j) and (k), which concern family violence, there is, I am told, to be a hearing of the father’s application for a domestic violence restraining order to be heard in the Local Court in the not too distant future.  The allegations about family violence, and there appear to be real indications that there has been physical violence between the parties and indeed family violence that is coercive and controlling behaviour, will need to be resolved if they can at trial.   I am satisfied that those are real issues. 

25. Having regard to all of those matters but primarily my concerns relating to the capacity of both parents and the child’s entitlement to a relationship with her mother, I am satisfied that there ought to be an order that the child spend three nights a week with the mother, that is, from Saturday 5.30 pm to Tuesday 8.45 am. The other orders have been made as agreed and I will make those orders.

26. I will make an order for the appointment of an independent children's lawyer.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 May 2019