Hirst and Simms

[2015] FCCA 3608

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIRST & SIMMS [2015] FCCA 3608

Catchwords:
FAMILY LAW – Parenting – interim Orders – whether children are at risk in the care of the mother – Orders for time with the Mother.

Legislation:

Family Law Act 1975 (Cth)

Mazorski v Albright (2008) 37 FLR 518

Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102

Applicant: MR HIRST

Respondent: MS SIMMS

File Number: DGC 1397 of 2010

Judgment of: Judge Small

Hearing date: 2 December 2015

Date of Last Submission: 2 December 2015

Delivered at: Dandenong

Delivered on: 4 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Meier

Solicitors for the Applicant: Meier Denison Guymer

Counsel for the Respondent: Ms Jardine

Solicitors for the Respondent: Altavilla Vessali

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: McCormack & Co

ORDERS

1. The children, X, born 2001, and Y, born 2004, shall live with the mother. 

2. The father shall spend time and communicate with the children:

   (a)Every third weekend from after school or 3.30 pm on Friday to 5 pm on Sunday commencing this day.

   (b)He shall spend time and communicate with the children by telephone each Tuesday at 7.30 pm with the father to place the call to a number provided by the mother and the mother shall ensure that her telephone is charged and switched on and that the children are available to take the call.

3. The father shall not spend time or communicate with the children other than in accordance with paragraph 2 hereof.

4. Each party shall attend upon his or her general practitioner within seven days and obtain a referral to a registered pathology clinic for the purposes of undergoing a liver function test and shall provide a copy of the results of that test to the other solicitor as soon as received.

5. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children X born 2001 and Y born 2004 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the children’s representative file a Notice of Address for Service.

7. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. Each party shall attend upon a psychiatrist nominated by the independent children’s lawyer for the purposes of undergoing an assessment of his or her psychiatric functioning and the independent children’s lawyer shall do all things in his or her power to ensure that the reports resulting from the assessment are annexed to an affidavit sworn by the psychiatrist and filed with the court no later than 14 days prior to the next court date.

9. Each party shall pay the cost of his or her psychiatric report.

10. Each party shall be and is hereby restrained by injunction from having a blood alcohol level above .05 while the children or either of them are in his or her care. 

11. The parties will be and are hereby restrained by injunction from denigrating, belittling or otherwise criticising the other or discussing these proceedings or allowing either child to read any document filed in these proceedings, either in the children’s presence or hearing, and from allowing any other person to do those things.

12. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the children X born 2001 and Y born 2004 (“the child/ren”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such Family Report to be released by 31 July 2016.

13. The Family Report to deal with the following matters:

    (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

14. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.

15. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

    (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

    (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

    (c)any family violence intervention or restraining orders currently in force.

16. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

17. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

18. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

19. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

20. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

21. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

22. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 5 April 2016 at 10.00am for Directions.

AND THE COURT NOTES THAT:

A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1397 of 2010

MR HIRST

Applicant

And

MS SIMMS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

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

2. The matter of Hirst and Simms came before me earlier in this week in the duty list and was referred for section 11F counselling on Wednesday 2 December.  The parties appeared in Court later that day when Ms A, the family consultant, gave evidence and after submissions from counsel for the mother and the solicitor for the father, I reserved my decision to today. 

3. This is a matter relating to the care arrangements of two children, they being X who was born in 2001 and Y who was born in 2004.

4. They are the only children of the marriage of Mr. Hirst and Ms Simms, which began with a cohabitation relationship in 1999.  The parties were married in 2002.  They separated in 2008 and were divorced in 2012 and as I said, X and Y are their only children. 

5. X and Y have been the subject of previous proceedings in this Court and indeed, one could say that this matter has had quite a chequered history.  Final orders were made in 2010, I think, before then O’Sullivan FM, and a further initiating application was filed some three months ago by the father.

6. Until then, the children had effectively been living half time with each parent on a week about basis.  They remain in that situation at the moment.  But the father’s application was that both children live with him and that they spend one weekend a month with their mother.  He cited the children’s wishes, saying that they children had told him they wanted to live with him, and that the mother has an alcohol problem, and that it was unsafe for the children, effectively, to remain with their mother.

7. The mother’s Response sets out allegations of family violence against the father which run back to the beginning of the relationship in 1999.  Those allegations are particularised in some instances and not particularised in others.  In submissions before me two days ago, Mr Meier for the father said that I should not take note of those which are not particularised because those which are, are answered by his client.  The family consultant, Ms A, gave evidence on Wednesday and she was particularly concerned about the allegations of family violence.

8. It was her recommendation, after speaking to the parties and to each of the children, that the children should live with their mother and spend only day time with their father and that on a supervised basis.  That would be an extraordinarily large change in circumstances for these children.  Ms A said that she was concerned about the wishes the children expressed, and they both expressed wishes to live with their father, although I think X said that he would be happy to live with either, and Ms A described X as appearing or presenting as very relieved when told that it would not be his decision, but mine, that decided his future living arrangements.

9. This really is a question of risk and a question of the influence on these children of both these parents.  Can I say at the beginning here, that the mother’s older son, B, who is 21 years of age, attended at the child inclusive conference interviews and was interviewed by Ms A.  She gave considerable time to what B had told her.  As pointed out by the father’s solicitor, that evidence is not on affidavit and in those circumstances, I put no weight on it whatsoever.

10. I take in account the mother’s affidavit evidence, which is, as I said, particularised in some places and not particularised in others and which is answered somewhat by the father in various places, but what I would say is this: the evidence of the mother is particularised enough to show what I would call a continuing pattern of physical, emotional and verbal violence against her, going back to the beginning of the relationship.  If I look at the mother’s Notice of Risk, she particularises the allegations and refers to where she discusses them in the affidavit.

11. The father’s Notice of Risk in fact says there is no risk to the children, and in those circumstances one wonders how he could make an application for full-time residence of the children if there is no risk to them in their current situation.  Of course, I cannot make findings of fact now.  This is an interim application and an interim hearing.  I can only make findings of fact at the end of a contested hearing when both parties have been in the witness box and have been cross-examined by the other’s lawyers. 

12. But when I am looking at risk to children, I certainly can take account of the affidavit material and balance the risk on the basis of that, so what I say is this:  if at trial I were to find that the mother’s allegations are true, then I would find that there has been a systematic pattern of family violence throughout this relationship and marriage.  That the children have become embroiled in it and that as the mother says, in her own words, that that family violence “became normalised” in her family.  If I were to find that that were not true, then of course, that would be a different thing, but I note that there have been several Intervention Orders obtained by the mother against the father and that four times, and I note that, four times the father has been charged with breaching those Intervention Orders.

13. He was convicted on one count.  He pled guilty to all four, he was convicted on one count, and the other three were found proven without conviction.  The father, in his affidavit material, has a different version of pretty much every incident that the mother particularises.  However, he does admit that he punched a car window and broke the car window and assaulted the driver, who he says had driven the car at him.  The mother denies that, and frankly, it does not matter to me right now which one of them is telling the truth.

14. It is common evidence between them that Mr Hirst broke the window and that pieces of glass assaulted the driver.  Ms Simms was in the car at the time.  Mr Hirst says he did not know that, but nevertheless, Ms Simms was in the car at the time.  The father also said, through his counsel, that he thought the breaches that he had committed were minor breaches, they were things like sending texts and, the last one, was what he says was an inadvertent presence within the 50 metre limit provided by the family violence Intervention Order.

15. I said at the time that there is no such thing as a minor breach of a family violence Order.  That may have been too strong a statement.  There may well be minor breaches of a family violence Intervention Orders.  However, a pattern of minor breaches of an Intervention Order, when taken together, may well be seen as an act of family violence in itself.  Consistent and persistent minor breaches can cause fear in a victim because she can never be sure when it is going to happen again, so it can be, in fact, as terrifying to a victim as major breaches, and I note that the evidence in this case does not just allege a few slaps here and there or a bit of yelling. 

16. It particularises a consistent pattern going back to 1999, and if I were to find at trial that that were true, then I would certainly need to take steps to protect these children, as indeed I am bound to do today. 

17. The law in relation to these matters is found in Part VII of the Family Law Act, that being the Part that deals with parenting Orders and whenever a Court is making a parenting Order, section 60CA sets out in black and white that I have to take the best interests of the children as my major consideration - what the law says is my paramount consideration.

18. The Act then goes on to provide something like 16 different factors, separate factors, which I have to consider in order to decide what is in a child’s best interests.  I am not going to go through every one of them in detail this afternoon or we will be here all day, but I will go through those that I think are relevant. 

19. There are two primary considerations.  The first is the benefit to children of having a meaningful relationship with both of their parents.  The term “meaningful relationship” has been discussed in many cases in this Court and the Family Court of Australia and it has been taken in all of those cases to mean a meaningful relationship is one which is significant, which is important, which is healthy. 

20. Those are the basic factors set out in the case that is often quoted, which is Mazorski v Albright (2008) 37 FLR 518, where Brown J said those things, and she said also that the term “meaningful” is a qualitative term, it’s not a quantitative term. So it is not as though the more time one spends with a child, the more meaningful the relationship will be. It is about the quality of the relationship.

21. And then later in a case called Tait & Dinsmore (2007) FamCA 1383 (Godfrey & Sanders (2007) Fam CA 102) Cronin J added to the definition of “meaningful”.  He said yes, of course it means all those things.  It means a relationship that is significant, important, beneficial, healthy, all of those things, but then he added something.  He said it also means for the relationship to be meaningful, that the parent must provide a role model for the child.  For a parental relationship to be meaningful it must teach the child how to be a citizen, in essence, in this society. 

22. When I look at the evidence in this case, there is evidence on both sides of heavy drinking.  Both parties deny it and I have no way, at this stage, of knowing who is telling the truth, but the children told Ms A that they had concerns about their father’s drinking and their mother’s drinking, I think, and it seems as though alcohol was certainly a major part of the parties’ lifestyle. 

23. That is only a problem if it is a problem, if I can say it like that, and in this case it seems to have been a problem on both sides.  The only evidence that I could find that is objective in relation to that is that the father has a conviction for driving with more than the prescribed concentration of alcohol in his blood, in circumstances where he turned a corner against a red light and the children were in the car at the time and he was caught and convicted of drink driving.  In his affidavit material, the father says, “Well, the children were wearing seatbelts”, as though that meant that they were safe.  Driving any car with a blood alcohol level of .05 or over is a criminal offence, it is as simple as that, and the reason it is a criminal offence is because it is not safe.  It is not just the driver who is at risk.  It is anybody else in the car and anybody else who the car might hit.  So I think that evidence shows that there is certainly some problem with the father’s consumption of alcohol.

24. I think that, on balance, there probably is evidence of the mother having a problem with alcohol, too.  But there is little evidence that the mother’s alcohol consumption leads to an anger management problem, which seems to be the case with the father.  I note also that the father has quite an extensive criminal history, that he has, as I said before, four charges, with one conviction and three proven, of breaches of Intervention Orders.  And in 2013 his criminal history would seem to indicate that he was sentenced to six months in prison for being on a private property without authority. 

25. I can make no further inference as to what that was about because I do not have any further information about that.  But it seems that the father has a history of not obeying the law or not being particularly concerned about whether he obeys the law. 

26. So, what I am saying is that as far as the role model part of meaningful relationship goes, I think the evidence is that the father, in particular, but perhaps the mother as well, have not provided particularly strong role models for their children.

27. I come now to the secondary primary consideration, which is the need to protect a child from psychological or physical harm as a result of abuse, neglect or exposure to family violence. 

28. If I were to believe (after trial), that the mother’s evidence is correct, these children have grown up in the most appalling situation where they have been subjected to witnessing their parents fighting, their father assaulting their mother, their mother perhaps retaliating, but certainly, if she is to be believed, their father assaulting their mother.

1. And Ms A was concerned about the effect of that on them, and said that the children basically want to be peacekeepers.  I think she may have described them as having a “caretaker role” in relation to their father, which is not the job of children. 

2. And I think the evidence of the mother, and the father for that matter, and the evidence of Ms A, is that these children have been seriously, seriously damaged by growing up in that milieu. 

3. So I need to take that into account, and the Act in section 60CC(2A) says that where those two things conflict, where it is a balancing act between the benefit to the child of having a meaningful relationship or keeping the child from harm, I must take it as more important to keep the child from harm.

4. That was a clause that was entered into the Act about three or four years ago, and it is very clear that the need to protect a child from harm is of more importance than the benefit to a child of having a meaningful relationship with both parents. 

5. The Act then goes on, in subsection (3) of Section 60CC, to set out 14 factors that I must consider. The first of those is the wishes of the children, but particularly in relation to their maturity and their understanding. The wishes of these children are quite clear, and indeed, we are not talking about babies here.

6. X, I think, is nearly 15.  He is 14 and a half.  And Y is nine and a half.  They are not infant children. 

7. In general, I would usually say that a 15-and-a-half-year-old would be able to decide where he is going to live.  But in this case, I am very concerned at what Ms A said about the effect on the children and on the children’s emotional wellbeing of the conflict between the parents.  And, therefore, I do not give as much weight to what they say as I would have given otherwise.

8. I need to take into account the nature of the relationship between the children and both parents.  The children love both parents.  That is quite clear from what they say.  The parents both say that they have loving and warm relationships with both of the children.  They have for quite some time had an equal shared care arrangement for the children.  But it seems to me that the violence that is alleged cannot help but have affected the relationship between X and Y and their father and their mother.

9. As I said, if I were to find at trial that only those incidents which have been particularised in the mother’s affidavit material had happened, then I would have to find that there had been this systematic pattern of violence over the relationship.  That cannot help but have affected the nature of the relationship between the parents and the children. 

10. I need to consider the separation of the children from one of their parents in making any order.  If I were to make the orders that the father seeks, the children would be separated from their mother for, I think, all but one weekend a month and a dinner on Wednesdays. 

RECORDED : NOT TRANSCRIBED

1. It would be, I think, Friday to Sunday and, at maximum, one night a week apart from that.  And I think it is actually a dinner on that weeknight.  That is a very big change for these children, and it is something I must take into account.  At the hearing the father’s proposal had changed from his application, and the father’s proposal was that, pending the final hearing or intervention by an Independent Children's Lawyer, the current arrangements should stay in place.  That is, that the week-about situation should pertain until final hearing.

2. The mother seeks orders in terms of the family consultant’s recommendations, that that the children should spend 10 am to 4 pm on the first Sunday of each month with their father. And, again, that would be an extraordinarily different pattern of care for X and Y.  What the family consultant Ms A says in her recommendations is that the children should certainly live with the mother.  What Ms A said was that she was concerned about what Mr Hirst would do if his time with the children were not supervised. 

3. She says that, in her opinion, having interviewed Mr Hirst, that he is still focused on the mother and what she does, after seven years of separation.  She thought that the children should only see Mr Hirst perhaps once a month, and that that should daytime.  She suggested that that time should be supervised by the paternal grandfather.  She also suggested a full family report, restraint on alcohol use and subpoenaing of police and DHHS records and a non-denigration clause.  On either party’s proposal, the children are going to be separated from one of their parents for most of the time.

4. On the father’s proposal, they will live with him and be separated from the mother.  On the mother’s proposal, they will live with her and be separated from the father.  I do take that into account in considering what orders to make. 

5. Another thing that Section 60CC(3) says that I must take into account is the parents’ capacity to meet the needs of the children, including their emotional and intellectual needs. It is the father’s evidence that the children come to him on most afternoons during the week and do their homework and spend dinner with him, before going back to their mother’s home.

6. There does not seem to be a lot of evidence, although there is some, of neglect, of the fact that the parents may not be able to take care of the children’s material needs in any extraordinary sense.  But the children have not been removed from the parents for that reason. 

7. They have certainly had DHHS intervention and involvement, but they have never been removed and the matters have not gone beyond the first steps in reporting child risk to the Department. 

8. It is in the area of the parents’ capacity to meet the children’s emotional needs that I have most concern in this case:  the evidence of the mother that the father got the children to ring her up and tell her that they hated her, for instance. 

9. That is very concerning, that the children would be involved in such a direct way in the dispute between the parents.  The children, as I said, have grown up with conflict, if I accept the mother’s evidence (but, even if I accept the father’s evidence, he does not deny that there was conflict between him and the mother; he just has a different view of who started that conflict and what it was about). But, on anybody’s evidence, the children have grown up in a conflictual household, and that gives me great cause to have concern for whether the parents are able to meet the emotional needs of these children.

10. And some of the comments that Ms A made, particularly in relation to the caretaking role that she says that X has taken on with his father, provide evidence that perhaps his emotional needs have not been well met to date. 

11. I also need to take into account the attitude to parenthood of both parents and their attitude to the children themselves.  I have no doubt in the world that these two parents love these two boys.  I have no doubt of that.  The father’s attitude to parenthood is that he is the primary parent.

12. There is evidence that he has enrolled the children in school without consulting the mother at all, in circumstances where the orders of 2010 provide for equal shared parental responsibility for the children.  He does seem, on the evidence of the mother and, I have to say, on some of his own evidence, to be somewhat focused on the mother and her activities rather than being focused on his role as the children’s parent. 

13. It is very important when relationships break down that parents are able to separate their feelings about the breakup of the relationship from their responsibilities as parents. 

14. Every relationship breakdown involves feelings of anger, of disappointment, of grief, of sadness, and those feelings must be kept separate from the responsibilities to look after children, to make sure that children feel emotionally safe, and to ensure that they grow up knowing that both parents love them. 

15. There is evidence in the affidavit material that there has been some attempt to influence the children’s views about various things, particularly about where they live and about their view of their mother.  And if I found that evidence to be proven, would be a very serious thing indeed.  X, particularly, is of an age where he is beginning to explore the world on his own terms.  He does not need either parent telling him what the other parent is like as a person.  He does not need to have his own perceptions of his parents criticised or challenged in terms of their personalities or their characters particularly.  He is old enough to make those judgments on his own and it is very much not in his interests, in the interest of his emotional needs, for him to be burdened with his parents’ views.

16. Section 60CC(3) also says that I must take into account any allegations of family violence and I am not going to go back and go over what I have said about both family violence and about the breaches, albeit that they might be minor, of the intervention orders.

17. I need to take into account whether there is an Intervention Order in place or whether there ever has been and, certainly, there have been several Intervention Orders in place over the years in this matter.  As I have said, there have been three charges of breaches by the father and I just note that that is the case in regard to that.

18. Section 60CC(3)(m) says that – and this is something that the Parliament often does; it leaves open to the court consideration of just about anything the court thinks is relevant - that in looking at what is in the best interests of the children, I must consider any other thing that I think is relevant. And I do think the allegations of alcohol consumption are relevant here to the children’s best interests. And I intend to make an Order that will interrogate that issue a little further. I consider all of those things: I consider the extensive allegations of violence, I consider the father’s denials of those incidents and the fact that he has explained some of them. I think his explanations are somewhat deficient on occasion in that they tend to minimise and downplay the effects of that violence, not only on the mother, but particularly on the children. But when I take all of those things into account I make the following orders until further order.

ORDERS DELIVERED

1. The reason I have made these Order so that they commence this day is because that means that the children will spend time with their Father on Christmas Day, which is a Friday.  So Christmas Day will be the day that is the beginning of the next period.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 27 April 2016