Hatton and Hatton (No. 2)

[2007] FamCA 552

FAMILY COURT OF AUSTRALIA

HATTON & HATTON (NO. 2) [2007] FamCA 552

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child - Interim - Review of Judicial Registrar's orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Hatton

RESPONDENT: Mrs Hatton

INDEPENDENT CHILDREN’S LAWYER: Ms Eva Karagiannis

FILE NUMBER: SYF 2657 of 2004

DATE DELIVERED: 29 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Watts J

HEARING DATE: 16 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Karras Partners

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW

Orders

1. The husband’s application in the case filed 6 December 2006 be dismissed.

2. Pending further order the mother have sole parental responsibility in relation to decisions concerning Son J’s education and medical treatment, but that those decision shall be made after consultation with the father.

3. Each party is restrained from saying unpleasant or demeaning things about the other parent.

4. Within 14 days the husband pay the sum of $8,800 to Dr R.

5. A Service Limited shall retain the sum of $8,800 from monies payable to the husband from time to time and, if after the expiration of 14 days from the date of these orders, A Service Limited receive from the Independent Children's Lawyer a copy of a letter from Dr R saying that he has not been paid the sum of $8,800 then as soon as possible, A Service Limited pay to Dr R an amount of $8,800 or amounts totalling $8,800 from monies otherwise payable from time to time to the husband. 

6. In the event that A Service Limited do not receive the letter referred to in order 5 within 28 days from the date of these orders, then A Service Limited shall use the retained amount of $8,800 to satisfy order 2 in other orders made this day (if not already paid) and then to satisfy order 8 of these orders (if not already paid) and then to pay any remaining balance to the husband.

7. The issue of how monies paid to Dr R are accounted for between the parties be reserved to the trial judge.

8. After all other payments required by order 5 of these orders and order 2 of the other orders made this day, A Service Limited pay to Karras Partners, from monies payable to the husband from time to time, as those monies become payable the sum of $15,000 or sums totalling $15,000. 

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2657 of 2004

Mr Hatton

Applicant

And

Mrs Hatton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of review of a decision of Judicial Registrar Johnston on 4 December 2006 I am asked to consider what time Son J born … October 2000 (“[Son J]”) and Son L born … October 2002 (“[Son L]”) should spend with each of their parents.  I am also asked to consider on an interim basis making an order for equal shared parental responsibility.  There is also an issue relating to how Dr R’s fees are to be paid

ORDERS MADE BY THE JUDICIAL REGISTRAR ON 4 DECEMBER 2006

1. On 4 December 2006 the Judicial Registrar made the following orders:-

   1.That pending further order the children Son J born on … October 2000 and Son L born on … October 2002 shall spend time with their father as follows:

   (i)each alternate weekend commencing 16 December 2006 for Saturday and Sunday between 10:00 am and 6:00 pm each day;

   (ii)Christmas Day between 11:30 am and 7:30 pm; and

   (iii)for 14 consecutive days commencing on 1 January 2007 between 10:00 am and 6:00 pm each day.

   2.That all handovers of the children shall take place at McDonalds Restaurant, N and the parties are to ensure that one or other of them is absent at handover and the children be handed over by a person or persons agreed between the parties.

   3.That the children shall have telephone communication with their father each day between 6:00 pm and 7:00 pm the father to make the telephone calls but if the children will not be available at the mother’s residence to receive the call the mother is to make arrangements for the children to call their father during those times.

   4.That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

INTERIM ORDERS MADE 3 MAY 2004

1. The following orders and notations were made on 3 May 2004 during a time when the parties were separated prior to the final separation:-

   1.That until further order the children of the marriage, namely [Son J] born […]/10/2000 (“[Son J]”) and [Son L] born […]/10/2002 (“[Son L]”) (collectively called “children”) live with the mother.

   2.That the children have contact with the father:-

   2.1Until 24.5.2004 each Monday and Wednesday from 1pm until 6pm and on Saturday 8.5.2004 and 22.5.2004 from 11am until 5pm.

   2.2Between 24.5.2004 and 28.6.2004 the contact pursuant to O.2.1 in respect of [Son J] shall be extended until 10am on Tuesday.

   3.The mother deliver the children to the father at the commencement of contact exercised pursuant to order 2.

   4.That the father deliver the children to:-

   4.1The mother at the conclusion of contact exercised pursuant to O.2.1; and

   4.2In respect of [Son J], to his speech therapist at the conclusion of contact pursuant to O.2.2.

   5.Such further or other contact as may be agreed from time to time between the parties.

   6.That all contact exercised during waking hours be supervised by [Mr M] or such other person as may be agreed.

   Notations

   7.Notation that the father undertakes that:

   7.1When returning the children following contact under O.2.1 the father will ensure the children will have been bathed and fed their evening meal.

   7.2He will not consume any alcohol or illicit drugs within a period of 12 hours of the commencement of contact nor during contact exercised pursuant to order 2.

   8.That in the event that the father is in breach of his undertaking noted at 7.2 then contact pursuant to order 2 is suspended.

   9.That although the father consents to orders and notations being made in the above terms he does so without admission and with a view to establishing a more extensive parenting arrangement in the future.

   10.That the mother shall facilitate the father’s contact with the children by telephone each evening when he doesn’t have contact between the hours of 6.30pm and 7.30pm.

2. So, the father had overnight contact during the first separation. 

NATURE OF THIS HEARING

1. As the Full Court observed in Goode & Goode  [2006] Fam CA 1346 (“Goode”), an interim application for parenting orders is, by its nature, an “abridged process where the scope of the inquiry is necessarily significantly curtailed”.

THE ISSUES IN DISPUTE

1. Many of the facts in the evidence of each of the parties in this case are not agreed.  Within the confines of an interim hearing, I am unable to be drawn into disputed issues of fact or disputed matters relating to the merits of each of the parties’ cases. 

FACTS NOT IN DISPUTE

1. A number of matters are not contentious.  The parties agree on the following facts and issues. 

Short history

1. The father was born … February 1967.

2. The mother was born … December 1964.

3. The parties commenced cohabitation in January 2000.  They married on … May 2000.

4. The parties separated in December 2005 (according to the mother) and 10 January 2006 (according to the father).

5. In May 2003 the parties moved to the premises which the mother currently occupies at M on the Coast of NSW.

6. The parties initially separated for the first time in March 2004 and interim orders were made by the Family Court on 3 May 2004.  As set out above, those orders gave Son J overnight contact with his father.  That overnight contact was conditional upon Mr M or such other person as may be agreed being available to supervise the father “during waking hours”.

7. The parties reconciled in the second half of 2004 and the Family Court orders were discharged by consent on 1 October 2004.

8. On 1 March 2006 orders were made mainly relating to interim property matters.  An order was made giving the mother exclusive occupation on an interim basis of the M property (order 4).

9. On 1 March 2006 the father provided the Court with a written undertaking which included the following:-

   1.To attend an anger management course with Relationships Australia;

   2.Until further order, not to consume alcohol 12 hours prior to the commencement of my contact with the children and throughout the period of my contact with the children.

THE FATHER’S UNDERTAKING ON 1 MARCH 2006 TO ATTEND AN ANGER MANAGEMENT COURSE WITH RELATIONSHIPS AUSTRALIA

1. At the commencement of the interim parenting hearing before me, Counsel for the mother made an application for an adjournment because the father had failed to comply with the undertaking he gave the court on 1 March 2006 to attend an anger management course with Relationships Australia. 

2. Part of the father’s application before me was for him to be relieved of his undertaking to attend the anger management course.

3. Given that that issue was relevant to the mother’s adjournment application, I dealt with it as a preliminary matter.  I made an order discharging the father’s undertaking and gave reasons.  The following matters were relevant:-

   19.1.The mother sets out in annexures B to E of her affidavit sworn 28 November 2006 correspondence that was sent between the lawyers for the parties and the Independent Children's Lawyer about the anger management course.  The correspondence took place between April and May.  In April the father had been referred to a consultant psychiatrist, Dr H.

   19.2.In the letter from the Independent Children's Lawyer dated 23 May 2006 (annexure E) the father was informed that the Brisbane office of Relationships Australia ran an appropriate course entitled “Alternatives to Aggression”.  The Independent Children's Lawyer had spoken to Dr H who recommended to the Independent Children's Lawyer that the father undertake that Relationships Australia course. 

   19.3.Notwithstanding the undertaking given to the Court on 1 March 2006 and the recommendation made by the father’s consulting psychiatrist in May 2006, the father by October 2006 had done nothing about participating in the course (apart from ascertaining that it went for 15 weeks).  In October 2006 he filed an affidavit seeking to be relieved from the undertaking he had given in March. 

   19.4.The father in paragraph 9 of his affidavit sworn 30 October 2006 said this:-

   I also seek to be released from the undertaking to attend an anger management course.  Upon inquiry I have become aware that the course is 15 weeks.  It is simply not possible for me to undertake that course given I reside in Queensland.  I do not believe that I have a need to undertake such a course in any event.

   19.5.Counsel for the father asserted from the bar table that Relationships Australia do not do courses for individuals, but rather group sessions.  I have got no evidence before me that that is accurate. 

   19.6.It was asserted that it was impossible for the father to comply with attending 15 sessions at set times in Queensland given his business commitments in two States.  I accept it would have been difficult.  Whether or not it was impossible to organise with Relationships Australia I can’t tell on the evidence I have before me.

   19.7.Counsel for the mother made the point that the father had been in Queensland for six months at the time he gave the undertaking to do the course with Relationships Australia so that he knew when he gave the undertaking that was where he was primarily residing.

   19.8.The father’s application that he be released from his undertaking was supported by a report from Dr B, psychologist, dated 30 November 2006 which concluded with the statement:-

   I can see no reason or benefit in a anger management program for this man.

   19.9.I accept Counsel for the mother’s assertion that that opinion was based upon the following presumed facts:-

   In his brief history there was only one incident that could be seen as a result of anger; he denies any convictions and/or any other incidents that relate to anger.  He considers himself to be a stable personality.

   19.10.By the time the matter came before me the father had undertaken seven one-on-one consultations with Dr B.  Those sessions were described in an affidavit sworn by Dr B on 14 March 2007.  He described how they happened in the following way:-

   In spite of my letter (of 30 November 2006 referred to above) [the father] opted to do a personalised anger management course that could improve the way he handles his matrimonial circumstances, his personal relationships and his business management strategies in general.

   19.11.The point of any anger management course is for the participant to attempt to gain insights and learn skills as to how to control anger.  It is unlikely that a course would give anyone assistance if the person going to it was highly resistant and saw no need for it. 

   19.12.It is quite clear that the father resolved not to comply with the initial undertaking.  The ramifications of that may be explored in the final hearing.  The benefit that he got from the course that he went to (if any) may also be explored at the final hearing. 

   19.13.However I saw no point in not discharging the father from an undertaking that he clearly had no intention of honouring.

THE APPLICATIONS OF THE PARTIES

Mother

1. The mother contends that the orders made by the Judicial Registrar on 4 December 2006 should continue.

Father

1. In an application in a case filed 6 December 2006 the father seeks the following orders:-

   1.That there be a review of the decision of Judicial Registrar Johnston made 4 December 2006.

   2.That the children of the marriage, [Son J] born […] October 2000 and [Son L] born […] October 2002 spend time with the father as follows:-

   i.For blocks up to 10 days and nights each month with the husband to give the wife 5 days’ notice of when he wishes to have the children, and in the absence of such notice being given, the father have the children as follows and in all cases subject to the father not having the children for more than 10 days in any calendar month during school terms:

   a.During school term, each second weekend from after school Friday until 6pm the immediately following Sunday evening.

   b.One half of all school holidays being in the absence of other agreement, the first half of holidays in even numbered years and the second half of holidays in odd numbered years subject to Order 2(ii) hereof.

   c.The weekend during which Father’s Day falls, from after school Friday until 6pm the immediately following Sunday evening.

   d.In the event that the husband is unable for any reason to exercise any of the time with the children then provided he has given the wife 5 day’s notice of his desire to do so, he may change any of the weekend contact time pursuant to orders 2(i) above, to substitute another weekend for the weekend he is not having with the children.

   ii.Notwithstanding any other arrangements, the husband shall have the children from midday on Christmas Eve until midday on Christmas Day in even numbered years, and from midday on Christmas Day until midday on Boxing Day in odd numbered years; with the wife to have the children notwithstanding any other arrangements from midday on Christmas Eve until midday on Christmas Day in odd numbered years, and from midday on Christmas Day until midday on Boxing Day in even numbered years;

   iii.Notwithstanding any other arrangements, the husband have both of the children on each of the children’s birthdays for a period of 2 hours if the child’s birthday falls on a school day and for a period of 4 hours if the child’s birthday does not fall on a school day.

   3.The husband shall have telephone contact at any reasonable time with the children, including without limiting the generality thereof, each evening between 6pm and 8pm and the wife shall ensure the children are available to take the husband’s telephone call.

   4.That the wife inform the husband and keep him informed of her current telephone numbers (including mobile numbers) so as to facilitate the husband’s telephone contact.

   5.That the husband be released from his undertaking given 1 March 2006 to attend an Anger Management Course at Relationships Australia.

   6.That the parties have equal shared parental responsibility in relation to the children.

   7.That in the event that she opposes these orders, the wife pay the husband’s costs of and incidental to the application.

   8.That this application be listed for hearing at the same time as the wife’s review of the orders of Johnston JR made 9 November 2006, namely on 18 December 2006.

2. The father’s application is basically for one third of time during school time and one half of school holidays. 

The Independent Children's Lawyer

1. The Independent Children's Lawyer supports the position of the mother as her primary position.  In the event that the Court contemplates the boys spending overnight time with their father, the Independent Children's Lawyer’s position is that it should not be more than one night at a time. 

FATHER’S ORAL EVIDENCE

1. On 18 December 2006 and the same day I heard this matter (16 March 2007) the father gave oral evidence before me in connection with an application for enforcement of financial orders.  At times he was flippant; at other times almost belligerent.  In response to a question on 16 March the father repeated that his situation was very complex and it was difficult for him to give specific answers in relation to financial matters.  There was no cross examination in respect to parenting issues.

SECTION 60CC MATTERS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the child/children’s parents

1. I am mindful in this case of the need to consider the benefit that the children will derive from having a meaningful relationship with their father.  That is a consideration to which I give significant weight.  It needs however in this case to be balanced against the other primary consideration and additional considerations.

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. I have a considerable amount of information in relation to the husband’s criminal record, other records kept about the husband by the police, including records relating to alleged violence in a personal relationship the father previously had with another woman.  Some of it is disputed, untested or hearsay.

The father’s criminal record

1. Exhibit J consists of records produced by NSW Police relating to the father.  The whole of the records that were sought to be tendered by the mother were objected to by the father.  All of those objections were unsuccessful.  The husband has not asserted that any of this record is inaccurate. 

2. The father’s criminal record discloses the following:-

1. In November 1982 when the father was a bit over 15 years old he was charged with three counts of indecent assault and one count of serious alarm (indecent language and exposed person).  These matters were dealt with in the Children’s Court.  The father’s comment in relation to this is “this occurred when I was about 14 when I touched a woman’s breast.  That was the extent of the matter”. 

2. The father was convicted of mid-range PCA in March 1988.

3. He was convicted of offensive language in February 1993. 

4. He was convicted of mid-range PCA in November 1999.

5. In November 2001 the father was convicted of maliciously damaging a motor vehicle.  The police fact sheet in relation to that incident is contained at tab 8.  The police facts were that whilst in company with another person, the father used a road barrier to smash the windows of a Toyota Prado; the front and rear passenger rear side windows of the vehicle were broken; the vehicle was parked at the time; when apprehended by the police the father told them that he was “willing to pay for the damages to sort the thing out”; he told the police that he was “angry with the owner of the vehicle for continually placing stickers on his car relating to parking complaints” and he said “he deserved the damage to his car”. 

6. The father pleaded guilty to the charge of maliciously destroy or damage property based on the police facts.

7. In his affidavit of 16 March 2007 (at paragraph 14) the father gives his version of the incident.  The father concedes in that paragraph that because someone had put “four stickers to the front windscreen making it impossible to see to drive his car” he became “very upset and broke the window” of the owner of the car who he believed to place the stickers there.  The father in his affidavit asserts that the Magistrate expressed sympathetic comments about what he had done but reluctantly said “Son, I have to find you guilty”. 

8. The father also asserts that the man whose motor vehicle he maliciously damaged “makes a living from upsetting people and suing them when they become hostile”. 

9. What seems uncontested is that five years ago the father had very poor impulse control.  The statement the father has made in paragraph 14 of his affidavit sworn 16 March shows little insight into the fact that what he did was wrong and the father expresses no contrition for what he did.

10. Mr Twigg asserted that the incident did not involve the mother and the children.  It is not entirely clear to me, from the evidence I have, that that is accurate.  Paragraph 14 of the father’s affidavit sworn 16 March 2007 seems to indicate that the incident happened at a time when the parties were living together and outside the premises in which they were living.  Although the aggression wasn’t directed at the mother, it happened in the precincts of the premises where she resided. 

11. Even on the untested evidence I have, I find this incident shows that in 2001 the father had the ability to display unpredictable aggressive and violent behaviour. 

12. In December 2003 the father was convicted for possessing cocaine.  His explanation for that was “I admit that a friend gave me .30 grams of cocaine as the friend was leaving.  I did not want the drugs, I asked “does anybody want this?”.  A girl, who happened to be the daughter apparently of a policeman, overheard, and I was arrested and charged”. The husband’s evidence about this conviction is yet to be tested. 

13. The mother in the parenting proceedings does not make an assertion that the father currently uses drugs.

14. The father appealed his conviction for possessing a prohibitive drug to the District Court.  The conviction was confirmed.

NSW Police records

Exhibit J – Tab 9

1. The information in the police records asserts that on 2 June 2001 whilst in the presence of the mother, the father got into an argument with a taxi driver and he punched the back of his “safety bubble” so that the driver was entombed, causing it to burst and crack.  This version of events was provided to the police by the taxi driver.  

2. Although the mother was present she does not appear to give any evidence about this incident.  The father alleges that it was the mother who in his presence called the taxi driver a “dirty fucking wog cunt”.  The father denies that he caused the safety bubble to crack or suffer any damage in any way although he doesn’t say whether or not he punched the back of the safety bubble as alleged.  On an interim basis I am unable to draw any conclusion other than that there was an unseemly incident in a taxi cab when the father and mother were present. 

Exhibit J – Tab 6

1. On 27 February 2003 the police recorded that the father maliciously damaged an electrically operated door granting access to a hotel pool by taking hold of the wires connected to the door and pulling the wires from the wall.  It is also asserted that he then removed his penis from his pants and urinated on the floor.  The police report asserts that the father was intoxicated at this time.

2. The father denies he damaged any door or that he urinated on the floor.  The police note says the manager of the hotel was happy to add the cost of the damage onto the accommodation bill of the father.  Again where the truth lies may well be able to be verified by independent corroboration at a final hearing, if the incident was considered relevant.

Exhibit J – Tab 5

1. This police record relates to alleged verbal aggression and physical aggression (grabbing a club member by the throat) by the father at K Sporting Club.  Annexure G to the mother’s affidavit is a letter from K Sporting Club dated 16 February 2004 from the director of the club.  The club’s disciplinary committee had recommended suspension of the father from the club.  In response he resigned from the club.  His resignation was accepted.

2. The father asserts that he was charged with assault arising from this matter.  The matter went to court and he was found not guilty and awarded costs.  Whether or not that is accurate may be something that can be clarified at a final hearing if the trial judge believes it is relevant. 

Exhibit J - Tab 4

1. The records show that in March 2004 the mother claimed to the police that there had been an incident between the mother and the father at the M property on 17 February 2004.  The mother describes this incident in paragraphs 31 – 33 of her affidavit.  The father gives a very different version of the incident although he agrees he pushed the mother during the incident.  The mother asserts that the police took out an interim AVO against the father and that is confirmed by the documents (see below).  The father was served with it on 18 February 2004.  The police however did not charge the father with assault as a result of the incident.  The mother on this occasion refused to sign the police statement and stated that she did not want the accused arrested but did want an AVO taken out. 

Exhibit J - Tab 3

1. This shows that an AVO was taken out on 9 March 2004 by the police against the father in favour of the mother.

2. The mother in paragraph 33 of her affidavit confirms that despite the existence of the AVO the father contacted and approached the mother on a number of occasions and in Easter 2004 he was charged with having breached the order.  The police records confirm the father was charged by police.  The mother says the father was convicted of this offence.  There is no entry on the father’s criminal record which would indicate that he had been convicted of breaching an AVO in 2004 or at any time.

Exhibit J - Tab 1

1. Another document in the police records shows that an interim AVO was obtained by police on behalf of the mother against the father on 3 May 2004 at a time when the mother had left the matrimonial home and was living at T. 

2. The mother at paragraphs 39 – 47 of her affidavit sets out what she says are matters relating to the issue of family violence.

3. It seems that this material may also have been in an earlier affidavit sworn by the mother on 15 December 2005.  The father in his affidavit sworn 28 February 2006 answered the allegations in the earlier material.

4. The father conceded that he pushed the mother on 17 February 2004 but the versions of the context in which that happened are totally different.  The mother’s allegation that the father was charged and convicted of an assault on 9 December 2003 is not corroborated by the father’s criminal record.  The mother asserts (in paragraph 39) that in November 2004 the father went into a rage at the dinner table, grabbed the plastic plate in front of son J and threw it at the mother.  She said that although the plate missed her, Son J’s food landed on her face and chest.  The mother says that Son J got out of his seat and started yelling “no daddy no” and stood between them.

5. The father agrees that this incident occurred, although he says that Son J was not at the table but watching television on the other side of the room and as far as he recalls Son J did not say anything.  It seems that the father agrees he threw a plate of food at the mother. 

Exhibit J - Tab 2

1. The documents at this Tab indicate that on 12 April 2004 the mother made a complaint to police about intimidating phone calls made by the father to her on 8, 9 and 10 April.  The police arrested and charged the father for breaching the AVO.  There is nothing on the father’s criminal record to indicate he was convicted of that charge.

2. The mother asserts that on New Years Eve December 2004 there was a physical assault on her by the father.  She says that she was left with extensive bruising down the right side of her leg as a result of the father attempting to throw her over a glass fence and into a swimming pool (paragraph 40 of her affidavit of 28 November 2006).  This does not appear to have been the subject of any complaint to the police. I am unable to locate any denial by the father of this incident in the material before me.

3. The mother alleges that on 30 December 2006 the father threw a bottle of beer at her which smashed against the tile floor (paragraph 46).  Given that 30 December 2006 was of a time when the parties had separated it is more likely in the context of the affidavit that that was another year.  I am unable to ascertain the father’s response to that allegation. 

4. The mother says (in paragraph 52) that security had to be called after a mediation session at the Family Court in order to take the father away.  The mother said that she was escorted by a security officer through an emergency exit about half an hour later.  Again I am unable to discern whether or not the father has responded to that allegation and again there may be independent corroboration available at a final hearing in respect of this allegation.

5. The mother alleges that in March 2006 the father yelled at her and berated her for about half an hour at contact changeover.

6. In paragraph 60 the mother alleges that in April 2006 the father came to the front door of her home trying to force it open and was yelling at her.

7. In paragraph 70 the mother alleges that in April 2006 the father referred to her as a “fucking pig” in the presence of the children.

8. In paragraph 73 the mother asserts that Son J got in the middle of a verbal argument between the father and the mother initiated by the father.

The father’s violence in a previous relationship

Exhibit J – Tabs 10 and 11

1. The information under these tabs indicates that interim AVOs were made against the father in favour of Ms S (with whom the father was in a domestic relationship) on 12 August 1997 and 28 October 1998. 

2. In statements made to the police in July 1997 the father conceded that there had been a physical altercation between the pair.  The father alleged that he had been hit in the eye by his partner, although there was no physical evidence to sustain that allegation.  It seemed to be common ground that several glasses and plates were smashed. 

3. It appears from the information under Tab 10 that after the first AVO had been taken out in 1997 the father and his partner reconciled.

4. The father in his affidavit agrees that he pushed his partner in an altercation in July 1997.  The police record asserts that in October 1998 Ms S complained that the father continually harassed her after an AVO was issued, threatening to harm her if she did not take him back.

5. Whilst untested by cross examination, I note the evidence of Ms G.  The father has made some admission about what Ms G has said.  Ms G is a special needs teacher.  She was employed by the mother to assist in changeover.  Some of the material in Ms G’s affidavit, if accepted at final hearing, shows that the father has a propensity for reasonably vicious language about the mother’s parenting capacity:-

   The reasons the kids don’t speak properly is because of her.  She has destroyed the kids.  She is a bad mother.

6. On 10 October 2006 Ms G says that the mother repeatedly referred to the mother as “bitch” and “psycho” and used the words “fuck” and “fucking” in speaking to her.  He said things including “she has fucked up the kids and that is why they are the way they are” and “it is her fault that [Son J] is intellectually delayed”.  According to Ms G, the father continued his insulting behaviour to Ms G on 4 November 2006.  Ms G says that whilst Son L was asleep during the conversation on 4 November 2006, Son J was awake and witnessed the entire exchange. 

7. The father asserts (paragraph 3 of his affidavit sworn 16 March 2007) that he didn’t have a heated discussion with Ms G prior to 5 November 2006.  He says his only heated discussion took place on that day.  He says the doors of the car were closed with the children inside so they could not hear anything.  He agrees he did raise his voice.

8. The father says “I did not at any time raise my hand to [Ms G]”.  I can’t see anywhere in Ms G’s material where she has alleged that the father did this. 

9. The father’s explanation as to why he became angry on 5 November 2006 was in part that the mother, without giving notice to the father, left the children to be delivered to the contact venue by a person he now knows as Ms G.  That is a curious explanation given that he met Ms G on three previous occasions in the context of contact handover.

10. Although the parenting issues were dealt with without cross examination of either party, the father did give sworn oral evidence before me in respect of the mother’s applications for enforcement of financial orders.

11. During evidence both on 18 December 2006 and on 16 March 2007 the father made aggressive, belittling and belligerent comments about the mother. 

12. Most concerning are the comments he made on 16 March before me, given that he had just finished seven consultations with Dr B in relation to anger management.  

The husband’s submissions on the allegations of family violence

1. Mr Twigg’s general submission in relation to all evidence on the police files is that on an interim basis where information is untested more weight has to be given to sworn evidence than what is contained in hearsay documents; that the granting of an AVO on an interim basis on allegations does not mean that the allegations are true; that some of the incidents took place before October 2000 when Son J was born; that some incidents happened before the mother consented to an order on 3 May 2004 allowing the father to have overnight time once a week with Son J; that Dr B assessed the father not to be a particularly angry person; that there has been no incident of anger at changeover since October 2006; that the only recent allegation of aggression is set out in paragraph 6 of the mother’s affidavit sworn 16 March 2007 (a statement attributed to the father on 19 December 2006) that “[Son J] will end up in gaol as an adult as you are impeding his progress”. 

2. Whilst the points made by Counsel for the father are appropriate, there are some uncontroversial events in the above discussion which point to the father having a propensity to act in an aggressive and belligerent way.  

3. I am reasonably satisfied that the father has not yet got to a stage where he can control his verbal aggression against the mother.  To a large degree it is irrelevant as to whether the children are present or not when he does this.  I am not satisfied that the father has any particular concern as to whether or not the children hear him.

4. The father makes it clear that he feels totally frustrated by the mother’s continued occupancy of the former matrimonial home and the restraints that puts upon his cash flow and his ability to organise his entrepreneurial affairs as he sees fit.  That frustration makes him angry.  He is not particularly good at controlling that anger.  He wasn’t particularly good at controlling aggressive statements in my court room. 

5. There is at least a prima facie case that has been made against the husband that he has a short fuse. 

Additional considerations

Views expressed by the children and the weight they should be given

1. The children’s views are not significant given their ages and I do not have the benefit of an expert report.

The nature of the relationship of the children with each of the parents

1. There is nothing that would indicate that the children have other than a good relationship with both their parents. 

The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Section 60CC(4A) Family Law Act 1975 requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.

2. The father complains that the mother has from time to time breached orders in relation to making the children available for telephone contact and not complied with arrangements in relation to face to face contact.

3. The parties were unable to reach a mutual decision in relation to Son J’s school for 2007.

4. Overall however, the mother has shown a willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father.

The likely effect of any changes including effect of separation from  parents or others

1. The Full Court in Goode (at paragraph 72) made it clear that where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child/children, the court must follow the structure of the Act as it has been amended. 

2. In this matter I do not have the advantage of any impartial expert opinion as to the likely effect on the child/children of changing existing arrangements which are well settled.  It should be borne in mind that these are not final orders and they do not attempt to look to what the situation should be on a final basis

3. Whilst the preservation of status quo living arrangements is not the focus of an interim consideration of parenting orders, stable and settled existing arrangements cannot be ignored. 

4. The solicitor for the father submits that little weight should be put on any need for some structure for contact arrangements in the interim.  He suggests that the father’s business interests in two states should be acknowledged as a reality and that consequently notice provisions should apply to the time that the father spends with both boys.

5. Given the level of tension that exists between the parties and the comments that I have already made about the husband’s aggressive nature, I put some weight, on an interim basis, on the stability of the current well settled arrangements.

The practical difficulty and expense of the children spending time with and communicating with a parent and the effect on personal relations and direct contact with both parents on a regular basis

1. There is a practical difficulty and expense in the father spending time with the children.  This arises from the practical difficulty inherent in him living for significant periods of time in Queensland.  That situation may improve if the properties and SV property are sold. 

The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs), the attitude to the children and to the responsibilities of parenthood

1. The mother sets out in paragraphs 24, 28, 29 and 30 of her affidavit sworn 28 November evidence which would lead to the conclusion that she was the primary carer for the children.

Dr T’s report

1. The father asserts that the mother has not properly implemented the conclusions and recommendations of Dr T’s report. 

2. Annexure A to the father’s affidavit sworn 30 October 2006 is an assessment report by Dr T, clinical psychologist, in relation to Son J.  Dr T says that Son J has some behaviour and development support needs as a result of his mild intellectual disability and significant expressive and receptive language difficulties.  The doctor does not believe Son J is suffering from any form of autism, including Aspergers disorder.  Rather Son J’s presentation is best explained by the combination of his language delay/disorder and intellectual delay. 

3. Son J does tend to use borrowed phases to communicate.  He has significant behaviour management needs.  He would benefit from clear, firm boundaries and awards for on task behaviour.  Son J’s social skills impairments are assessed by Dr T as secondary to (occurring as a result of) his intellectual delay and delayed language development, rather than any more primary impairment. 

4. At page 3 of her report, Dr T says that the mother described to her that Son J tended to use phases he had heard on TV (at times in the same intonation).  She indicated concern that much of Son J’s language seemed to be learnt from TV. 

5. This was described by both Counsel in the hearing before me as “parroting”, although that is not an expression Dr T uses. 

6. The mother’s control of the time Son J watches TV has been focused on by the father as a failure by the mother in her parenting capacity which has led to Son J’s learning difficulties. 

7. The father’s position in relation to Son J’s difficulties is simply set out at paragraph 7 of his affidavit sworn 30 October 2006.  It is in the following terms:-

   It has been my constant complaint to the wife that rather than simply letting the children watch TV, she should talk to the children and try to actually spend quality time with them.  I believe that the combination of the children’s watching television constantly, rather than playing or being involved in more normal interactions, together with the time they spend watching television at the wife’s parents’ home where Spanish is the main language spoken, both have been the reasons for the children’s severe developmental delays.  The wife has not addressed these in any practical way and I believe given my involvement with [various service businesses] (through the [K Service] businesses) I would be well placed to help both children if I am permitted to spend more time with them.

8. I am of the view however that in the context of Dr T’s overall report the complaint that the reason for Son J’s severe developmental delays is that he watches too much TV is simplistic.

The mother’s evidence about the father’s lack of supervision of Son J

1. The mother in her affidavit of 16 February 2007 (paragraph 5) gives evidence as to an incident that took place on 2 December 2006.

2. On that day the father took both boys to a birthday party.  He left them at the party for 30 minutes to go to N Fair to buy a voucher for the mother’s birthday.  Son J went missing from the party and was found playing in the car park of the centre by one of the parents.  The father was contacted on his mobile phone and asked to return to the party.

3. The father hasn’t formally responded in relation to the assertions made by the mother in paragraph 5, although submissions made on his behalf did not seem to cavil with the basic facts.The father says he saw the allegation in relation to Son J running away on 2 December 2006 for the first time on 16 March 2007.  Solicitor for the father commented that the father can’t be criticised for leaving Son J with the party organisers and that the mother had not complained about this incident until three months later.  The submission made was that the father should have been able to be confident that those organising the party could have properly supervised Son J and ensured that he did not run away.  That of course begs the question as to how much knowledge those supervising the party had in relation to Son J’s propensity to run away.  The mother gives evidence at paragraph 14 of her most recent affidavit of the special arrangements that have been put in place at school between those looking after Son J to keep a track on him.  Solicitor for the father also said it was extraordinary that the mother had not mentioned in any of her affidavit material before the court the difficulties in respect of Son J running away from school.

4. Without further examination of this issue, I am unable to reach any conclusion that the father failed in his capacity as a parent on this occasion.

5. The father’s application is for extensive periods of overnight contact with the children on an unsupervised basis. 

6. The father gave evidence that he has available to him the property of Mr M which is approximately one kilometre away from the matrimonial home.  The mother was content with Mr M as an appropriate supervisor on a previous occasion (see order 18 May 2004); exhibit 6.

7. However, the father does not propose any supervision by Mr M and Mr M has not provided the court with any evidence.

8. The trial judge will be assisted by a report from an expert that will provide further evidence about the father’s capacity to provide for the needs of the children, including their emotional needs and his attitude to his responsibilities as a parent. 

The maturity, sex, lifestyle and background of the children and of either of the children’s parents

1. Son J’s difficulties have been described under the previous heading.  His level of development and maturity are reflected in his performance at school.

2. The father points to the evidence of his sister and his employee to provide some support for the notion that he has some skills in child care.  His employee refers to him as being firm but fair.  Solicitor for the father submitted that that may be the approach needed for disciplining Son J. 

3. The solicitor for the father submitted that it was the father’s position that whatever the mother had been doing to attempt to manage Son J’s problem wasn’t working.  The fact that he had to repeat kindergarten was proof enough of that. 

4. School reports from Son J’s school were tendered (exhibit G) and correspondence with the school was tendered (exhibit H).

5. Son J’s second semester 2006 school report showed that he was very unsettled, but his February 2007 report showed that he had improved and was dealing better in a class situation.

Family violence

1. I must also ensure that any order I make does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: Section 60CG.

2. I have already discussed issues in relation to family violence when considering the second primary consideration.

Any family violence order

1. There is no current family violence order.  Previous interim orders have been referred to in the discussion about the second primary consideration. 

The father’s regard for court orders

1. The father doesn’t seem to have a particularly high regard for court orders or undertakings he gives to the court.

2. He decided not to honour the undertaking he gave to the court on 1 March 2006 to attend an anger management course with Relationships Australia.

3. He decided that complying with the court order to pay the mother’s lawyer’s fees was very low on his list of priorities.  In fact, so low that he hasn’t reached the point in time when he believes he should give some attention to that order. 

4. There is the order, that the father not come onto the M property, made on 4 December 2006 by the Judicial Registrar which has not been stayed and is the subject of this review (order 2).  That order is consistent with the previous order made on 1 March 2006 giving exclusive occupation of the matrimonial home to the mother on an interim basis.

5. The father often arrives at the former matrimonial home to collect the children and on occasions to return them, notwithstanding the fact that there is a specific order that he not do that.

6. The father failed to comply with the undertaking he gave the court on the last occasion that he would make arrangements to pay for Dr R’s report.

7. All of this behaviour which is uncontroverted creates an impression of an adult who, to a certain degree, does not have particular regard to previous agreements or imposed arrangements if those agreements and arrangements do not suit him.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. Section 61DA Family Law Act creates a presumption of equal shared parental responsibility. This presumption does not apply if there are reasonable grounds to believe there has been abuse of the child/children or family violence.

SECTION 61DA(3)

1. The presumption for equal shared parental responsibility does not apply in interim matters where the court considers it would not be appropriate in the circumstances of the case for that presumption to be applied when making the interim orders.  The Full Court in Goode (at paragraph 78) states that:-

   Section 61DA(3) provides a discretion, not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal difficult.

2. As I have said, I am reasonably satisfied that the father still exhibits poor impulse control.  As to whether or not he has a propensity to violence, there is some uncontradicted evidence as to that but the extent of it and the impact that it might have on the outcome at a final hearing is something that I am unable to assess in the confines of this interim hearing.

3. In the circumstances of this case there is a significant issue as to the level of family violence that has existed.  I am not able to determine in the confines of an interim hearing the extent or effect of family violence in this case.  Given the limited evidence, I exercise the discretion under Section 69DA(3) not to apply the presumption of equal shared parental responsibility in this case.  

4. As mentioned already, the father asserts that the mother allows the children to watch too much television and that part of Son J’s language difficulties stem from the fact that the children spend time with her parents who have a Spanish background and speak Spanish in their home.  As I have said, I do not accept that assertion.  The mother says that since Dr T’s report she has been diligent in observing her advice particularly in relation to Son J’s language difficulties.

5. The mother’s version as to the meeting in June 2006 in relation to Son J’s progress is set out in paragraphs 78 – 80 of her affidavit sworn 28 November 2006.  The father in the two affidavits he has sworn and filed since that time has not responded to the assertions made in those paragraphs.  I am unaware as to whether or not the father contests those matters.  The mother’s evidence remains untested. 

6. In December 2006 an issue arose as to whether or not Son J would repeat kindergarten in 2007.  The mother’s evidence is that during a meeting with relevant school staff the father became “verbal and personal towards me” saying “[Son J] will end up in gaol as an adult as you are impeding his progress”.  The semester 2, 2006 school report (in exhibit G) does not record this meeting.  The school made a recommendation that Son J repeat kindergarten in 2007.  The father opposed Son J repeating school according to the mother.  A decision however has been made that Son J repeat school.  I do not have the father’s version of this event.

CONCLUSION ABOUT INTERIM PARENTAL RESPONSIBILITY

1. Given the state of the evidence and bearing in mind this is an order for the short term, I intend to make an order that the mother have sole parental responsibility in relation to decisions about Son J’s schooling and medical treatment pending a final determination of the matter.  Otherwise the presumption provided by the Act would apply and I do not intend to make any other order in relation to equal shared parental responsibility. 

GIVEN THAT THE PRESUMPTION DOES NOT APPLY OR IS REBUTTED SHOULD I STILL CONSIDER EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME IN THIS CASE?

1. Notwithstanding the presumption does not apply I still need to consider whether or not the children spending equal time or substantial and significant time with their father is in their best interests. 

2. Given the weight that I have placed, on an interim basis, on the second primary consideration, I do not think it is appropriate for the children to spend equal time or substantial and significant time with their father on an interim basis.

CONCLUSION ABOUT WHAT ORDER IS IN THE CHILDREN’S BEST INTERESTS IN THIS CASE?

1. Having regard to the Section 60CC matters discussed above I accept the submissions of the Independent Children's Lawyer and Counsel for the mother that the current arrangements as established by the Judicial Registrar, are currently in the best interests of the children.

DR R’S FEES

1. On 18 December 2006 the father gave an indication through his lawyer that he would make arrangements for the payment of Dr R’s fees for the preparation of a report.  He indicated that he was going to borrow money from his sister to do so and gave no evidence as to why the father was unable to fund it out of his own resources.  Otherwise the issue as to who should be responsible for the payment of the report was reserved.

2. The Independent Children's Lawyer suggested that if Dr R‘s fees could not be paid then a family report should be ordered under Section 62G.  By implication, the Independent Children's Lawyer sought that the order for Dr R to prepare a report should be discharged. 

3. That course was opposed by Counsel for the mother. 

4. Dr R was appointed as a single expert in this matter on 11 July 2006.  I am told that the fees required to fund the preparation of his report are $8,800.  I am told that it would be anticipated that once Dr R’s fees are guaranteed he would complete interviews and provide a report in about six weeks. 

5. It is the mother’s case that the father suffers from a personality disorder and that that impacts upon his parenting.  It is further contended by the mother that the father’s personality disorder interacts with Son J’s behavioural issues. 

6. I agree with Counsel for the mother that it would be preferable if a child psychiatrist could do the report of this family, rather than a family consultant. 

7. Given the findings I have made in relation to the father’s financial affairs, I do not accept that the father is unable to arrange for the payment of Dr R’s report. I shall order him to do so.

8. Contemporaneously with me providing these reasons, I have provided reasons in the other application involving the parties where the husband sought to review financial orders made by a Judicial Registrar.  In those reasons I have dealt with the availability of funds from A Service Limited as the source from which enforcement of court orders might be achieved. 

9. I accordingly intend to order that the father pay Dr R’s fees and if in 14 days he defaults in complying with that order I intend now to make a default enforcement order which will be aimed at providing Dr R with funds of $8,800. 

PROPOSED ORDERS

1. I have been asked to make a mutual non denigration order and I will do that.  

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  29 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HATTON & HATTON (NO. 2)