Henrich and Seabrook
[2011] FMCAfam 295
•17 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENRICH & SEABROOK | [2011] FMCAfam 295 |
| FAMILY LAW – Parenting – interim orders – violent relationship. |
| Family Law Act 1975 |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS HENRICH |
| Respondent: | MR SEABROOK |
| File Number: | WOC 783 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tolbrook |
| Solicitors for the Applicant: | Robertson Lawyers |
| Counsel for the Respondent: | Mr Masnotti |
| Solicitors for the Respondent: | A B Mezzanotte Lawyers |
ORDERS
That the child of the relationship [X], born [in] 2009, live with the mother.
That the child spend time with the Father each alternate Saturday from 10am until 4pm.
That for the purpose of Order 2:
(a)The Father is to ensure that his mother Ms S or a suitable adult family member is present at all times while the child is in his care.
(b)Changeover is to be in the McDonald’s car park, [address omitted].
(c)The Father is to ensure that his mother Ms S or a suitable adult family member is to conduct changeover on his behalf.
For the purpose of communication:
(a)The Father is to ensure that his mother Ms S or a suitable adult family member is to contact the mother by text or mobile.
(b)Any such communication is to be confined to arrangements for the child or emergencies.
THE COURT FUTHER ORDERS THAT:
The matter be set down for a two day Final Hearing on 1 and 2 September 2011 at 10am in Sydney.
The parties file and serve any further material on which they seek to rely no later than 21 days before the Hearing.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which each party will rely at hearing; and
(b)The Orders sought at hearing.
Leave be granted to the Independent Children’s Lawyer to file in Chambers a Minute of Order relating to the preparation of a Family Report or appointing a Pt 15 Expert.
The parties have leave to relist the matter on 7 days notice.
The matter be adjourned to 27 July 2011 at 9:30am for mention in Sydney.
IT IS NOTED that publication of this judgment under the pseudonym Henrich & Seabrook is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 783 of 2010
| MS HENRICH |
Applicant
And
| MR SEABROOK |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in the matter of Henrich & Seabrook that came before me for interim hearing during last week’s Wollongong circuit.
The case relates to a child, [X], born [in] 2009, who is just two months short of being two years old. The applicant mother is 33 years old, and she lives in the [omitted] area. She was and is at all relevant times the child’s principal carer. She is a part-time university student. The respondent father is 36 years old and is an unemployed [omitted] living in Sydney.
The parents cohabitated between October 2002 and March 2010. It is common ground that their relationship was a rather tumultuous one. On 1 October 2010, the parents, with the assistance of their respective legal representatives, entered into interim consent orders, the effect of which is that the child live with the mother and spend time with the father each alternate Saturday from 10 am until 4 pm, and there are a number of orders that provide a framework for that contact to take place.
The issue before me is whether, and if so, how that interim order should be varied. The mother’s proposal is, in effect, that the current orders be maintained. The father’s proposal is contained in his case outline document and in that he proposes that the child live with the mother and spend time with him on a basis that provides for 10 to 4 on four nominated days and then from 10 am Saturday to 4 pm Sunday each weekend, commencing from 9 April. In this minute of order, again, there are some orders which implement these proposals. The independent children’s lawyer’s proposal is broadly supportive of the father’s proposal except to the extent that it involves overnight contact.
The evidence before me consisted of the affidavits of the mother, the father, and the paternal grandmother. In addition, the Child Dispute Conference memorandum of 3 December 2010 is in evidence, and a considerable quantity of documents produced on subpoena including documents produced by [L] Counselling, Ms T, [omitted], (being the Area Health Service), and the New South Wales Police.
The applicable law governing these proceedings is, of course, Part VII of the Family Law Act, and the Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides a framework of how to approach these decisions as well as the relevant law.
I turn now to consider whether there is any common ground or undisputed facts in this case. These are gleaned from the evidence and from the submissions that were made on behalf of the parties. I think it is fairly common ground that apart from perhaps a few short periods, the mother was at all relevant times the primary care provider for the child. It is common ground that there is a final domestic violence order in place that was granted on 19 March 2010 and expires in two days time, namely, 19 March 2011.
It seems common ground from the evidence of both the mother and the father that after the final AVO, there was a further incident or incidents involving the father, which resulted in subsequent charges against him for breach of the AVO and assault. The father has pleaded not guilty, and there is a final hearing later this year. Even the father’s counsel tacitly conceded in submissions that if the father is convicted of these offences, he may be sentenced to a period of imprisonment. I will shortly refer to the father’s criminal record. The father’s counsel’s submissions in this regard are well founded.
What is also highly relevant is that the incident involving the mother and the father resulting in the charge against the father occurs after the interim orders that were made in these proceedings. It is further common ground that after the interim order, the mother and the father have periodically resumed cohabitation at least for short periods, and he was involved at least to some extent during these periods in the care of the child.
It is further common ground that at the very least, and to use the words of counsel for the father, “the relationship between the mother and the father is complex, was fraught with anger, violent words and sometimes violence.” The father’s counsel acknowledges that whilst the mother’s affidavit details horrific family violence, the father does not agree as to the extent of the same, even though he agrees that it did happen. Further, it is common ground from the evidence that both parents seem in a previous life to have been involved in a motorcycle gang.
The mother’s submissions, through her solicitor, are as follows. Her solicitor frankly conceded that the mother did go back to the father even after these proceedings were commenced and even after the family violence deposed to by the mother in her affidavit. She described this as part of the “cycle of family violence” in which the mother keeps going back, tries to get help, puts herself in danger by going back, says yes to avoid conflict but fears reprisals. Notwithstanding this, the mother concedes that the child should have a relationship with the father. But for the family violence, the mother even concedes that the current frequency of contact being fortnightly is not enough. To use the words of the mother’s solicitor, the mother appreciates that their “toxic relationship is a barrier to effective parenting.”
Apart from matters to which I have already made reference to above, the father’s counsel submits that notwithstanding the matters raised on behalf of the mother, even since the interim orders have been made the mother and father have resumed cohabitation on a number of occasions, and this has resulted in the father having, during these periods, at least shared care of the child.
It is submitted that as the mother had no concerns for the care or the safety of the child on these occasions, this reflects the mother’s confidence in the father’s parenting capacity and, to this extent, is quite inconsistent with the fears that she states in her affidavit. In these circumstances, the proposal of the father, it is submitted on his behalf, is actually quite a child focused one in that it provides for supervision, at least for a short period. A challenge identified by counsel for the father is how to maintain attachments between a child of [X]’s age and the father in the circumstances of this relationship, especially when there is a geographical distance that separates the parents. He submits that this is a case where the mother works each weekend, and therefore, it is both sensible and practicable that at least at these times, the father should have the care of the child.
The independent children’s lawyer’s submissions focus primarily on attachment issues arising out of a child under two years having such infrequent contact as exists at the moment, having regard to the context of the father’s past relationship with the child. Thus, the ICL submits contact should be at least once a week, but given the age of the child and the circumstances of this case, overnight contact is contraindicated. “That there is high conflict in this case is an understatement,” says the independent children’s lawyer. The independent children’s lawyer submits that the father has possibly minimised the extent of family violence.
I turn now to discuss the evidence in this case. Even at an interim level, it is possible and, indeed, sometimes necessary to make some observations and findings based on the available evidence. At paragraph 29 of the father’s affidavit of 25 February 2011, he gives evidence of his criminal antecedents, and he says, for example, that he was convicted of assault occasioning actual bodily harm in ‘95 and ’96, of a low-range PCA in ’94, of a mid-range PCA in ‘95 and 2005, of hindering a police investigation in 2008 and of being convicted of driving whilst disqualified on three occasions.
When one has regard, however, to the documents produced on subpoena by the New South Wales Police and, in particular, his criminal antecedents, what becomes apparent is the father has not told the court about the following: a mid-range PCA in 1998; an assault occasioning actual bodily harm in 1990; a malicious damage in 1994; an assault occasioning actual bodily harm in ’97; a low-range PCA in ’96; two assault occasioning actual bodily harm in 1997, both of which were appealed and in respect of which the appeal was dismissed; and also the record indicates a fourth driving whilst disqualified and then, of course, the current charges, the October 2010 charges of breached AVO, common assault and stalk/intimidate.
This evidence is, in my opinion, highly significant in a case where the mother alleges very serious family violence and the ICL submits that the father has minimised the same. It gives me little confidence about the father’s willingness to properly disclose to the court matters relevant to the determination that it has to make.
I turn now to examine the father’s own evidence about family violence. For example, at paragraph 11 on 25 February 2011, he refers to the incident in March 2010, and he describes this in the following terms, and these are his words:
I became involved in a heated argument with [Ms Henrich]. During the course of the argument, I threw a screwdriver against the wall. I then left the premises.
When the father’s account of this incident is contrasted to the COPS entry for this event, it indicates that the screwdriver was in fact thrown several times and that the dents caused by the father’s actions were observed in the walls and ceiling. An AVO resulted as a result of this incident. This is a clear example of the minimisation that the independent children’s lawyer was referring to.
In paragraph 15 of the same affidavit of the father, he describes events on a Thursday when the father received some documents in the mail – namely, the mother’s affidavit sworn 7 September 2010. He says, and these are the father’s own words, “Why are you telling all these lies?” In the context of a case where it is the father’s own counsel who has presented his case as one where the father agrees that there was family violence, though not necessarily the extent of the same, one must have regard to all of the other evidence in this case. And this, I want to suggest, is an example of the father minimising the extent of the family violence and seeking to project blame on the mother.
In paragraph 24 of the same affidavit, the father says, and I quote
My observations of [Ms Henrich] over the years that I have known her are that she becomes upset for little or no reason. She has almost, on a daily basis during the course of our relationship and also in recent months, shouted at me and abused me. She has often referred to me in foul and abusive terms. She has called me a fucking cunt, a fucking wog, a calculated prick, and a fucking arsehole. At any time when we have become involved in an argument, I have observed that [Ms Henrich] shouts in a loud voice and immediately commences to refer to me in foul and abusive terms. There had been occasions when I have reacted badly when [Ms Henrich] has abused me.
I find this a disturbing paragraph of the husband’s evidence in which the father is again minimising the impact of his own actions and is projecting blame and indeed is claiming to be a victim. This is entirely consistent with the observations made by the workers at [L] Counselling on 23 March 2010 during counselling that the husband and the wife attended. I read onto the record an extract from the documents that were produced by [L] Counselling. And I quote,
The husband appears to blame the wife for provoking him, and minimises his abuse by appearing to suggest his violence is in retaliation to the wife’s insults. However, when challenged and discussed at a deeper level, the husband acknowledges that the wife is scared of him as a result of past incidents and is wary of him for days after an incident. The husband said he is triggered by feeling shut out or kept in the dark by the wife, and appears to genuinely want a relationship and a respectful relationship, but reacts with violence when he feels threatened verbally or emotionally.
This is, in my opinion, a clear indicator of the dynamics of this relationship. The significance of this evidence is that the family violence clearly continues after 22 March 2010. The subsequent events, of course, result in the breach of AVO charges.
At paragraph 26 of the husband’s affidavit, the father gives evidence about his attempts to rehabilitate himself. And in particular, for example, he talks about seeing a Mr H “who has assisted me significantly with anger control and addressing my depression issues.” He also talks about seeing a psychologist.
At paragraph 27, he refers to attending a Managing Strong Emotions course in November 2010 with Anglicare. Notwithstanding that, even the father concedes that he was charged with breach AVO on
27 January 2011.
There are two reports of his own psychologist produced on subpoena that are interesting insights into the father’s attempts at rehabilitation. The first report is dated 3 September 2010. It says, and I quote,
[Mr Seabrook] has attended ten psychology sessions to date in order to address his anger issues. He has applied himself well in the sessions, and is making significant progress. He is under no illusion as to his responsibilities for his actions. He and his partner have a highly dysfunctional relationship, and I hold little prospect for their ability to resolve their issues adequately. [Mr Seabrook] is a loving father, and he fears for his son’s happiness. I think this entraps him in a process of endless attempts to resolve a very troubled relationship.
What I find interesting about this is to note the observation about the father accepting responsibility for his actions. This is something that seems to be quite not apparent in his own affidavit. With respect, the father’s subsequent actions do not demonstrate this.
On 15 October, the father again sees his psychologist, and I quote here,
[Mr Seabrook] has completed 13 session of cognitive psychology for anger management. He has responded well to date, and is gaining self-monitoring capacities and increased other awareness. [Mr Seabrook] is developing sound strategies to circumvent the build up to anger and violence. In my opinion, he does require further therapy of at least six sessions. Also, I would recommend an ongoing review on a monthly basis. Provided he and his wife enter therapy together, there may be the possibility of remediating a very toxic relationship. However, I am quite pessimistic in this regard. With all due respect, given [Mr Seabrook]’s continued improvement, I think a custodial sentence would have a negative impact on his progress. He is very aware of the gravity of his actions. He has diligently applied himself to make the changes needed, and I am pleased with the outcomes to date.
It is clear from this document that its focus and purpose was to seek to contraindicate custodial sentence. Clearly, the psychologist is optimistic. The subsequent events in this case certainly cast doubt on the reason for any optimism.
At paragraph 32 of the father’s affidavit, he seeks to respond to the mother’s allegations. Again, this evidence is significant because of what he admits to. He admits that there was an assault on the mother on 28 July 2010. He admits calling the mother a bitch, a slut, and a dog. He admits punching a hole in the wall. He admits screaming at the mother close to the face. He admits accusing the mother of having lovers. He admits telling the mother to fuck off. He admits telling the mother to get out of the room. These are the father’s own admissions, and they raise very serious concerns, in particular in a case like this, where the father’s involvement in therapy has been so extensive.
Finally, at paragraph 42 of the father’s affidavit, he says,
I have had problems,
in the past tense,
and difficulties in controlling my temper when [Ms Henrich] and I have been involved in arguments. My conduct towards [Ms Henrich] both physically and verbally has been inexcusable. I do not regard [Ms Henrich]’s behaviour towards me as an excuse for my conduct. I regret and apologise pushing her, throwing a screwdriver, and referring to her in foul and derogatory terms. I undertake that I will not behave in such a manner towards her in the future.
I am not sure, on all of the evidence before me, that I can be confident about the father’s assertions. The totality of the evidence suggests that the father is still struggling to control his anger management issues. And even on the limited information available at an interim hearing, he seems to be minimising his responsibility and involvement in these matters. He presents himself, in his affidavit, as the victim, and has sought to project blame. At no point in his evidence does the father demonstrate any consideration about the possible consequences for [X] of his actions, or the impact that his actions might have on the mother’s capacity to parent [X].
All of this reflects extremely poorly on his parenting capacity, and as regards his attitude about parenting. I am left with a strong impression that this is a risk, and continues to be a risk, that the child will be exposed to the father’s inability to control his anger.
And yet, this case also raises issues about the mother’s own parenting capacity and her ability to protect her own child from the clearly dysfunctional and violent relationship that exists between them. Her own solicitor submits that she is trapped in the cycle of family violence, a history which is clearly apparent from the evidence. It is tacitly submitted that she is unable to protect herself from this relationship, and this at least partly explains why the frequency of contact should not be increased. There is substance to this. The mother’s solicitor’s description is, again, consistent with the evidence.
The dilemma that is presented in this case is that the frequency of the current contact arrangements are of concern for a child of [X]’s age. Even the independent children’s lawyer submits it should be increased. And yet, this is a case where there is ample evidence to find that there has been serious family violence, and no evidence at all about how this has had an impact on the child. Moreover, any connection between the mother and the father brings about the possibility that she would allow him back in her life, and thus, if history is any guide, she will expose herself and the child to further danger. She remains fearful of him.
There are two other relevant possibilities that cannot be ignored in this case. Firstly, that if the father is found guilty of charges he currently faces for breach of AVO, he may go to gaol, thus frustrating the benefit of any order for contact. Secondly, there is the possibility that at the final hearing, there will be no contact order made.
In these circumstances, I must be very careful about building up a contact regime that may not be able to be sustained in the future.
Having regard to all of these matters, I am going to place a lower priority on attachment issues and therefore the frequency of contact, and focus instead on protecting the child from what is, at the very least, a toxic relationship between the mother and the father, or at its most a classic coercive and controlling violent relationship.
I have little trust in the mother’s capacity to protect the child from a violent relationship, and this is a fact that I take into account in not increasing the frequency of contact. Overnight is out of the question until I have some expert evidence about attachments and about any adverse impacts on the child of the child’s exposure to the parental relationship.
Any physical contact between the parents is, again, out of the question. The current order already provides for a third person to facilitate contact. The maternal grandmother appears a suitable person in this regard, though I doubt, from the evidence that she has filed in this case, that she is fully aware of the nature and extent of the family violence that is occurring in this relationship. Nonetheless, she should be able to at least facilitate changeovers.
I am going to ask the independent children’s lawyer to consider very carefully about what type of report is needed in this case.
In the orders that I make, I will be setting this matter down for a hearing at the earliest possible time, and whilst I can’t give you the specific dates now, I can indicate it will probably be in September, and it will be in Sydney, to minimise the delay before a hearing is allocated. In the orders that I will make, I will also make the usual directions.
For all practical purposes, I intend to maintain the current contact regime.
In order that I may specifically address the matters contained in section 60CC of the Family Law Act, this is a case where there is a benefit to [X] of having a meaningful relationship with both parents, and I am satisfied that in the difficult circumstances of this case, fortnightly contact with the father will be a minimal amount to keep that relationship going.
However, it is the second of the primary considerations that prevails over all other considerations in section 60CC, and that is the need to protect [X] from physical or psychological harm, from being subjected to or exposed to family violence.
I am satisfied that [X] does have a relationship with both parents. I am satisfied that there is little evidence to suggest that either parent has a difficulty with facilitating and encouraging a close and continuing relationship between the child and the other parent. I am not worried about any changes in the child’s circumstances, and indeed, I do not intend to make any changes.
I rule out overnight because of [X]’s age and developmental stage, and the nature of the change that he would be experiencing.
There are no insurmountable issues of practical difficulty and expense. There are real issues in this case about the father’s capacity to meet the needs of the child, and his attitude and responsibilities to parenthood in the context of the family violence that he appears to have perpetrated. As I have indicated, there are also issues about the mother’s capacity to adequately protect the child from a toxic relationship.
In these circumstances, I don’t think it is necessary for me to make orders as to parental responsibility, particularly given that this matter should be heard within a matter of six months.
I intend to issue some orders to reflect what I have said in the next few days, but as I indicate, I would like the ICL to have a good think about what sort of expert evidence we need in this case, and as I have indicated, there will be a hearing date allocated probably sometime in September this year.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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