HAYNES & CLIFFORD

[2014] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYNES & CLIFFORD [2014] FCCA 1521

Catchwords:
FAMILY LAW – Interim parenting – where evidence of the parents divergent – where mother's allegations not supported by the evidence she relies on – where supervision needed for other reasons – where the chronology is potentially misleading – duties to the Court.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346

Applicant: MR HAYNES

Respondent: MS CLIFFORD

File Number: WOC 1055 of 2013

Judgment of: Judge Altobelli

Hearing date: 20 May 2014

Date of Last Submission: 20 May 2014

Delivered at: Wollongong

Delivered on: 27 May 2014

REPRESENTATION

Solicitors for the Applicant: Horizons Community Legal Centre

Solicitors for the Respondent: Bailey Mullard Lawyers

ORDERS, PENDING FURTHER ORDER

1. That the Child, X born (omitted) 2010, is to live with the Mother.

2. That the Child is to spend time with the Father as follows:

   (a)Commencing from the first Sunday after the making of these Orders, and for 4 weeks, for 2 hours between 10:00am –12:00pm.

   (b)Thereafter, and for the next 4 weeks, for 4 hours between 8:00am - 12:00pm.

   (c)Thereafter, and for the next 4 weeks, for 6 hours between 8:00am -2:00pm.

   (d)Thereafter, until further order, between 8:00am – 4:00pm.

3. That the Child’s time with the Father is to be conditional on:

   (a)it being supervised by one of the following people – Ms M, Ms A, Ms L or Mr L for a period of 16 weeks from these Orders.

   (b)The undertakings given by said supervisors and which are annexed to the Father’s affidavit filed in Court on 9 May 2014.

4. For the purposes of implementing these Orders changeover is to take place at (omitted) McDonald's Restaurant, noting that the supervisors are to be present at that time.

5. Each parent will keep the other informed of:

   (a)Their residential address and a contact telephone number (except that the mother will not be required to disclose her current address at a women's refuge); and

   (b)Any significant injury or illness suffered by the child and details of all medical treatment given to the child; and

   (c)All day care, pre-school, school, extra-curricular and sporting activities in which the child is involved.

6. Each parent is entitled to communicate with the child's day care, pre-school or school and receive copies of all reports, notices, newsletters, bulletins, applications for photographs and other correspondence from the child's schools and the father will provide the Manager of the child’s day care or Pre-School and the Principal of the child’s school with a copy of this order within 7 days of the date of the orders (or 7 days of the date of the child’s enrolment) and will authorise the Manager or Principal to facilitate this order.

7. Each parent is entitled to attend all events involving the child, including:

   (a)Day care, pre-school and school functions and events that allow for parental attendance, including (but not limited to) concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions; and/or

   (b)Sporting and/or other extra-curricular training, fixtures and performances

   and the parent who has the child in their care on the day of such activity will be responsible for the child’s day to day care at such event and the child’s transportation to and from that event.

8. The mother and the father are each restrained from:

   (a)Denigrating each other (and/or any members of each other’s extended family) in the presence or hearing of the child;

   (b)Consuming alcohol to the extent that he or she would not be permitted to legally drive a motor vehicle while the child is in his or her care and for a period of 12 hours prior to the child coming into his or her care;

   (c)Consuming any illegal drugs while the child is in his or her care and for a period of 12 hours prior to the child coming into his or her care.

9. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)to consider the factors in sections 60CC and 65DAA of the Family Law Act1975;

   (b)to consider issues raised in the Family Consultant’s Memorandum to Court;

   (c)to profile of the parents (and other significant adults);

   (d)to assess the parents interactions (and those of other significant adults);

   (e)to assess the children’s developmental and emotional state;

   (f)to assess the relationship of the children to the parents (and other significant persons);

   (g)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

   (h)to assess the proposed and actual home environments; and

   (i)to assess the proposals of each party as to the children’s future.

10. The Court requests the said report be released by 10 October 2014.

11. The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

12. If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

13. Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

14. In the event that the Family Report has been released by the adjourned date both parties be in attendance in person on the adjourned date.

15. The parties must within 14 days contact Relationships Australia on (omitted) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.

16. In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Circuit Court.

17. Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.

18. If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.

19. The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.

20. Relationships Australia is to notify the court no later than 7 days prior to the adjourned date whether or not the parties have completed the assessment and the parties’ progress generally.

21. Both parties to share equally the costs of the program.

22. The matter be adjourned to 17 October 2014 at 2:00pm for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1055 of 2013

MR HAYNES

Applicant

And

MS CLIFFORD

Respondent

REASONS FOR JUDGMENT

1. In the matter of Haynes & Clifford, I provide the following oral reasons.  The mother in this case is the respondent, she is 35 years old.  The father is the applicant, he is 32 years old.  The case concerns a child, X who was born (omitted) 2010.  X is about three and a half years old and lives with her mother.  The mother has two other children from another relationship – A who is 15 and B is 14.  Both those girls live with her.  The relationship started in 2009, and ended in April 2013.  The parties had in fact married on (omitted) 2013. 

2. The evidence of both parties suggests that there were multiple separations and reconciliations during the time of the relationship.  On any view of the relationship it was a volatile and turbulent one that was marked by high conflict to which all the children were exposed.  The issue before the court is whether in fact it was a violent relationship.  It is common ground that X has not spent with her father for 13 months and this presents one of the many challenges in this case.  The other major challenge in this case is reconciling the grossly divergent factual assertions made by each parent against the other. 

3. The proposals before the Court were as follows. The father sought interim orders in his Initiating Application that was filed on 16 December. However, the interim orders that he sought were modified by reference to the proposals outlined at paragraph 16 of his affidavit of 9 May. In effect the father was seeking that his relationship with X be gradually introduced over a period of time. The mother’s proposal is contained in her Response filed on 29 April 2014. In effect the mother’s proposal was that if the Court found that there was an unacceptable risk to X from her father, then it be sole parental responsibility, lives with mother and no contact. If the Court found that the father does not present an unacceptable risk, it be sole parental responsibility, lives with mother and supervised contact at Catholic Care.

4. The evidence before the Court consisted of the father’s affidavits of 9 May and 13 December and the mother’s affidavit of 22 April 2014.  There is a Child Dispute Conference Memorandum of 1 May 2014 as well.  In addition, a volume of documents were produced on subpoena and which were tendered in evidence, including from Dr R and New South Wales Police. 

5. The applicable law is contained in Part VII of the Family Law Act 1975. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2) and (2A):

   (2)  The primary considerations are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

7. There are additional considerations set out in s.60CC(3):

   (3) Additional considerations are:

   (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b) the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child's parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h) if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j) any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i) the nature of the order;

   (ii) the circumstances in which the order was made;

   (iii) any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v) any other relevant matter;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

8. As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:

   (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b)     family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

9. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII:

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means 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, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. The father’s case was in effect that he and the mother had a volatile and highly conflicted relationship but there is no basis for denying him contact or denying him a relationship with his daughter.  The father accepts that both he and the mother drank, at times heavily, and that this contributed to the conflict between them.  It should be noted that the father’s allegations about the mother’s drinking was raised clearly in his affidavits but not rebutted by the mother in hers, despite its length – 219 paragraphs. 

2. The mother’s case is that the father was consistently and systematically violent to her and her children in the presence of X and the children.  She says that he was a heavy user of marijuana and alcohol.  She says he had often acted with great recklessness or indifference about X’s care and that he was anything but motivated about her welfare.  In short the dilemma that I referred to earlier in these reasons is apparent.  The parents present grossly divergent recollections of their relationship. 

3. If the mother’s version were accepted then there would indeed be concerns about unacceptable risk and the family violence might contraindicate an order for contact or might limit contact to supervised time only.  However, if the father’s version were to be accepted then the focus would be on somehow creating circumstances in which a meaningful relationship between X and himself can be re-created.  There are a number of deeply disturbing features about this case.  The allegations the mother makes are serious and are particularised in detail.  If her evidence were to be accepted, the father’s behaviour was consistent with a pattern of coercive and controlling violence of which he was the perpetrator and the potency of which was quite severe. 

4. But what is problematic is that the father’s denials are equally particularised and just as plausible.  He advances evidence that is quite inconsistent with the mother’s assertions.  Furthermore, some of the mother’s allegations are plainly inconsistent with the objective evidence produced on subpoena which was tendered.  For example, she refers to an incident in December 2010.  The COPS entry is quite inconsistent with the mother’s evidence contained at paragraphs 25 to 46 of her affidavit and inconsistent in significant respects.  Nextly, the alleged diagnosis of the father as having bipolar contained in the mother’s case, and highlighted in the submissions made on behalf of the mother, is plainly unsupported by the notes produced by the doctor. 

5. The mother refers to an incident in August 2012 at paragraphs 131 to 136 of her affidavit but her evidence is again plainly inconsistent in significant respects with the relevant COPS entry.  At paragraphs 169 to 179 of the mother’s affidavit, an event as alleged occurring on 12 April 2013 – again there are inconsistencies with the relevant COPS entries.  Nextly, the COPS entries are replete with observations of the mother’s consumption of alcohol, something which she firstly did not deny when the assertion was made to her by the police;  secondly, did not refer to in her own evidence before this Court;  and thirdly, it is something that she staunchly criticises the father about in her evidence. 

6. Of more concern is the manner in which the mother’s case was presented.  It sought to either firstly minimise the relevance of the mother’s own consumption of alcohol or, secondly, actively ignore the evidence that was contained in the COPS entries about it, or possibly mislead the court about the diagnosis of the father in relation to bipolar.  The Court records its concern about the misleading nature of the chronology that is contained in the mother’s case outline.  It is not an accurate representation of the facts asserted. 

7. Whilst the Court accepts that a chronology is a forensic tool in the course of persuasive advocacy, there is a clear ethical duty to ensure that it is accurate.  It is plainly obvious from the chronology that whoever drafted it had access to the subpoenaed documents.  The manner in which the contents of those subpoenaed documents has been presented in the chronology is clearly misleading.

8. The manner in which the mother’s evidence was represented at times is plainly inconsistent with the matters contained in COPS documents, being documents that whoever drafted the chronology had access to, and yet there was no attempt, for example, to point out to the Court that the COPS records were either inconsistent or not entirely consistent with the matters deposed to.  It is possible that the duty to the Court was subsumed to the perceived duty to the client. 

9. The result of the above is that the mother has not been able to establish her case about family violence on an interim basis.  No inference can be drawn in her favour from the facts that she puts before the Court.  No impression can be formed that is consistent with her case.  Indeed the only impression that can be formed from the totality of the evidence is that the mother and the father had a volatile relationship - often, if not always, fuelled by excess alcohol that both consumed.  If there was family violence – and this is only an impression – it was both reciprocal and mutual.  This is highly problematic.  It is a dysfunctional relationship which was played out in X’s young life. 

10. The dilemma for the Court is what to do.  On behalf of the mother at the interim hearing it was contended that the Court should order a Child Inclusive Conference before making an interim order.  X is three years old.  The Court can see no such benefit in having such a Conference.  On behalf of the mother it was contended that a Child Inclusive Conference should include the mother’s other children who, it is asserted, may corroborate the mother’s evidence about family violence.  That is plainly an abuse of process and the Court will not countenance that. 

11. The mother seeks either no contact or supervised contact at a supervised contact centre.  She has not made out her case for unacceptable risk of abuse and she has not satisfied the Court why supervised contact, if ordered, should only be at a supervised contact centre when the waiting list is many months long.  On the evidence before the Court there clearly are concerns about X having been exposed to her parents’ conflict and in circumstances where, by the mother’s own admissions, she has failed to protect her children. 

12. It is possible that the mother fails to perceive the real concerns about the welfare of X in her own care, though any such risks are, the Court accepts, mitigated by the separation and by the making of orders that the Court intends to make.  As it turns out, the Court accepts that contact should in the first instance be supervised but not for the reasons advanced by the mother.  X is very young and has spent very limited time with her father.  There are concerns about the father equivalent to concerns about the mother, about his drinking, and about his participation in unconstrained conflict in front of X.  In the short term, and pending a Family Report, as a transitional measure these concerns are best managed by supervision. 

13. The father presents a carefully articulated case about supervision.  Naturally, the mother objects to his proposed supervisors.  She presents, in this Court’s opinion, no objective basis for any such objection.  She prescribes no viable alternative.  The undertakings that are offered on behalf of the supervisors are appropriate.  The father’s contact proposal, as moderated at paragraph 16 of his affidavit, is a step in the right direction, though the orders that I will make will proceed more conservatively.  I decline to make any orders for parental responsibility at this stage.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       3 September 2014