HITCHENS & HITCHENS

[2018] FamCA 608

FAMILY COURT OF AUSTRALIA

HITCHENS & HITCHENS [2018] FamCA 608

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Best interests of a child – Where the mother contends that the father poses an unacceptable risk of harm to the children by reason of family violence or exposure to family violence – Where the allegations are very serious but untested – Where a conservative approach is appropriate - Where the children shall spend time with the father as sought by him save that his time shall be supervised by the paternal grandmother.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

APPLICANT: Mr Hitchens

RESPONDENT: Ms Hitchens

FILE NUMBER: BRC 8051 of 2018

DATE DELIVERED: 10 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Williams

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Ms K. Carmody

SOLICITOR FOR THE RESPONDENT: Feeney Family Law

Order until further order

1. X born … 2005 and Y born … 2007 (“the children”) live with the mother.

2. The children spend time with the father at all such times as may be agreed between the parties and failing agreement as follows:

   (a)       Commencing Wednesday, 22 August 2018 from after school Wednesday until before school Thursday each week;

   (b)       Commencing Friday, 17 August 2018 from after school Friday until before school Monday each alternate week; and

   (c)       From after school Friday, 7 September 2018 until 3:00pm on Friday, 14 September 2018 (with the alternate weekend time recommencing on 21 September 2018).

3. Subject to contrary agreement between the parties, the father’s time with the children as provided for in the preceding paragraph is to be supervised by the paternal grandmother, Ms B Hitchens, or such other person as may be agreed between the parties.

4. Changeover occur at the children’s schools if a school day or otherwise at McDonald’s C Town.

5. Each parent be entitled to attend any school or extracurricular activities to which parents are ordinarily invited, including but not limited to assemblies, excursions, concerts, sports days, sporting matches, sporting training and parent teacher interviews.

6. The application filed 17 July 2018 (interim parenting orders) be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hitchens & Hitchens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8051 of 2018

Mr Hitchens

Applicant

And

Ms Hitchens

Respondent

REASONS FOR JUDGMENT

1. Mr Hitchens and Ms Hitchens are the parents of X aged 13 and Y aged 11 and they are unable to agree on when the children spend time with the father and whether that time should be supervised.

2. Despite the mother being served with the father’s application filed 17 July 2018 (it was amended on 3 August 2018 but not substantially) on 23 July 2018   she only engaged her current solicitor on 2 August 2018 and her material was hurriedly and unsatisfactorily prepared.  Her counsel initially proposed that I listen to a number of recordings. This was during a busy duty list. Her counsel was unable to say when the recordings were made (other than one which was made on 13 June 2018) and her counsel had not had the opportunity to listen to the tapes (or not all of them). Ultimately, the request to play or tender the tapes was not pressed and no adjournment of the matter was sought for that reason or indeed for any other.

3. For the reasons which follow I have determined that it is in the best interests of the children to spend time with the father each Wednesday overnight and each alternate weekend and for one week of the upcoming school holidays on condition that the time is supervised by the paternal grandmother.

proposals of the parties

1. The father proposes that the children spend time with him each Wednesday overnight and each alternate weekend from after school Friday to before school Monday and for a week over the upcoming September school holidays.[1]

   [1] The precise order sought by the father is contained in the minute of order provided with his written submissions and retained with the court papers.

2. The mother initially opposed the children spending any time with the father.[2] Her position changed to opposing any time pending the preparation of a family report. Ultimately, the mother indicated her consent to the children spending time with the father each Wednesday for a few hours after school and each alternate Saturday and Sunday, but not overnight, as long as the time is supervised by the paternal grandmother, Ms B Hitchens.

   [2] See exhibit 1.

issues

1. The parties submissions identify the following issues as particularly relevant to this interim hearing:

   a)Whether the father poses an unacceptable risk of harm to the children by reason of family violence or exposure to family violence; and

   b)Whether the mother’s past actions are inconsistent with a belief that the children are at risk from the father; and

   c)If risk cannot be assessed given the untested evidence of the parties, how should the children’s right to spend time with their father be balanced with protecting them from possible harm?

background

1. By way of background I note the father is 40 years of age and self-employed as well as also employed full time as a manager. The mother is 45 years of age and not employed. She is engaged in home duties.

2. The parents commenced cohabitation in 2002 and married in 2003. They separated on 15 June 2018.

3. As noted above, they have two children, X born in 2005 and Y born in 2007. The children attend private schools.

4. The father contends that prior to separation he and the mother shared on a daily basis the care of the children including dropping them off and picking them up from school. The mother attended to the majority of the household tasks with the assistance of a cleaner and ironing lady. The father coached the children’s sports teams.

5. The father contends that the children have a close and loving relationship with each parent.

6. The father lives in rental accommodation and the mother continues to live in the former matrimonial home. The parties live in reasonable proximity to each other and to the children’s schools. The children are said to be progressing well at their respective schools.

applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper[3], but such consideration will focus in particular on issues that will be determinative at an interim hearing. [4]

   [3] See s 65D.

   [4] Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[5]

   [5]Baghti & Baghti [2015] FamCAFC 71.

3. Section 60B sets out the objects and principles to be applied when considering what parenting order is proper.

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child so far as they are relevant. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

7. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[6]

   [6] Banks & Banks (2015) FLC 93-637.

9. In Marvel & Marvel[7], the Full Court said:

   As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.

Whether the father poses an unacceptable risk of harm to the children by reason of family violence or exposure to family violence

[7] Marvel & Marvel  (2010) 43 Fam LR 348 at [120].

1. The allegations of violence against the father are very serious although in most circumstances the allegations are unsatisfactorily particularised and the evidence minimal. The allegations containing some particularity include the following:

   a)That in late May 2018 the father ‘strangled’ the mother by grabbing her around the neck and squeezing;

   b)In early June 2018 the father grabbed the mother by the tops of her arms and started shaking her. She was left with bruising to her arms;

   c)Sometime after 4 June 2018 the father admitted in the presence of a counsellor that he had ‘strangled’ the mother;

   d)In late May 2018 the father called the mother a ‘fucking dumb cunt’ in front of the children.

2. The mother attended upon a Dr D on 4 June 2018. There is, as yet, no evidence from Dr D. The mother concedes that the alleged strangling did not cause any bruising to her neck. The mother made a complaint to police on 4 June 2018. The mother contends that police were initially dismissive. The police records are not, as yet, before the Court.

3. On 13 June 2018 the mother applied for and was granted an ex parte temporary protection order which ousted the father from the former matrimonial home. The application for the protection order is not before me so I do not know whether or not the evidence relied upon is as set out above.

4. The temporary protection order includes various other restraints against the father e.g. not to go within 100 metres of the mother and children. The various injunctions are subject to certain exceptions e.g. if consistent with a parenting order under the Family Law Act1975 (Cth). On 26 July 2018 the mother’s application for a protection order was adjourned to late August 2018.

5. Other than stating that he intends to defend the application for a protection order the father says nothing about family violence in his affidavits.  

6. On a date between 23 and 27 July 2018 the mother alleges that she and the children ‘heard noises outside’ and ‘[t]he dogs were barking’. Police were called. The mother contends that Y saw a man in an orange jacket ‘in the atrium (outside our home)’.

7. On 27 July 2018 the mother was ‘physically attacked’ outside her home. The attacker is alleged to have said ‘[d]rop it or I will kill you and your family’. No other details about the attack are provided by the mother other than that the assault occurred in the dark when the mother went outside to her rubbish bin. Police records relating to the attack are not, as yet, before the Court.

8. On 28 July 2018 the mother attended the E Hospital in an ambulance. There is no explanation for the attendance at the hospital the day after the attack. The hospital records are not, as yet, before the Court.  

9. The mother contends that she and the children were taken to a ‘safe house’ on the night of 28 July 2018, the day after the alleged attack.

10. On 29 July 2018 the mother took the children to F Town ‘to try to feel safe’ and they returned to Brisbane on 2 August 2018.

11. The 27 July 2018 incident is relied on by the mother as evidence that the children are at risk from the father. It was described by the mother’s counsel as a ‘serious risk’ but one that could not be established ‘today’.

Whether the mother’s actions are inconsistent with a belief that the children are at risk from the father

1. Despite the allegations set out in paragraph 22 above, and while the mother was represented by a law firm with expertise in family law, the mother participated with the father and children in a child inclusive conference over two days on the 27 and 28 June 2018. The conference was conducted by an experienced social worker who spoke individually to the parents and children on 27 June 2018 and observed the father with the children on 28 June 2018. Her email report of that observation dated 29 June 2018 is so positive that I consider it worthwhile setting it out in its entirety:

   Just wanted to let you know that the session between dad and the kids went spectacularly well.  BOTH children were spontaneously affectionate towards him, both gave him a hug and (sic) the start and conclusion of the visit.  They were so happy to see him (and he was obviously pleased as well), there was no hesitancy or reticence on their part and I was quite struck by how loving and engaged they all were.  At the conclusion of the visit, dad (really appropriately and gently), at my invitation, told the children that he was living in a new place where there would be a room for each of them for when they came to visit.  Both kids seemed pleased and offered a positive comment on some aspect of [the] unit (e.g. [Y] said her desk looked really nice).  [Mr Hitchens] did not make any comments about time-frames etc. I reminded them that their parents’ primary focus was on their wellbeing and that I would be keeping in touch with them to offer whatever support they might need.  When they returned to their mum they both said they had enjoyed the visit.
   I’m not sure where to from here and will be guided by you both in terms of what, if anything, you would like me to arrange etc.

2. On 29 June 2018 the mother proposed that the father spend time with the children for four nights per fortnight.

3. This proposal was made despite what the mother now says:

   45…. Our son [X] is currently 13 years of age.  The day after the session with [Ms G] at which he spent time with his father, [X] complained to me.  [X] said words to the effect of, “Are you going to abandon me again mummy?” after I had permitted him to meet his father with [Ms G].  At that time, I did not feel I had any authority to prevent that.  I told her [X] was afraid.  [Ms G’s] description of the children’s experience is not consistent with [X’s] remark to me.

4. The children spent time with the father on the weekend 30 June 2018 to 2 July 2018. The father describes an uneventful weekend with the children (by that I mean there were no issues with the children) during which they participated in numerous enjoyable activities together.

5. The father proposed by letter dated 2 July 2018 that the children spend time with him from 5 to 12 July during the school holidays and once school resumed from Thursday to Monday in week one and from Wednesday to Friday in week two. No response to that proposal was received from the mother.

6. On 10 July 2018 the father attended an intake session with Ms H for the purposes of family dispute resolution counselling. The mother undertook her intake session on 13 July 2018. Counselling was scheduled to occur on 3 August 2018.

7. The father commenced proceedings on 17 July 2018.

8. On 18 July 2018 the mother proposed that the children spend time with the father for the weekend commencing 20 July 2018 until 22 July 2018. The father accepted the offer and the children spent time with him on that weekend. 

9. There is no evidence from the mother raising any concern about the time the children spent with the father on the weekends referred to above other than a very general assertion in the following terms:

   45. The children have expressed distress when they return from time spent with their father…. 

10. The mother does not state how the children’s distress was expressed. The reason for the children’s alleged distress is unknown. While the mother might invite the inference that the children were unhappy about spending time with the father, it might be that the children were unhappy about their time with the father being restricted. The alleged distress is also at odds with Ms G’s observations.

If risk cannot be assessed given the untested evidence of the parties, how should the children’s right to spend time with their father be balanced with protecting them from possible harm?

1. The allegations made by the mother are very serious. However, the evidence is untested. I am unable at this time to make a finding that the father poses an unacceptable risk of harm to the children. I accept that on their face, the mother’s actions, as detailed above, are at odds with her position that the children require protection from the father.

2. Subsequent to the mother’s actions however, she was attacked outside her home. I have no doubt that the mother would be extremely distressed at being the victim of assault outside her home and even more so if she believes the father was in some way responsible. On the evidence before me, the basis for that belief appears tenuous, but the mother’s distress needs to be considered within the context of her allegations that she has been ‘strangled’ by the father and referred to by him in the most appalling terms.

3. In the event I considered it appropriate to impose supervision of the father’s time with the children, the father nominated his mother as an appropriate supervisor. The mother indicated her consent to the paternal grandmother supervising the father’s time with the children.

4. Given that any order I make is intended to be temporary pending the opportunity to consider further evidence, preferably tested by cross-examination, I propose to take a conservative approach and impose supervision until further order or agreement between the parties.  

5. However, I do not see the need for the children’s time with the father to be limited to day time only. I come to this conclusion because the allegations made against the father do not directly involve the children i.e. they were not the subject of abuse; the children’s relationship with the father was described in such positive terms by Ms G as recently as 29 June 2018; the mother agreed to the children spending overnight unsupervised time with the father as recently as 22 July 2018; there is no evidence of harm to the children on the two occasions they spent time with the father since separation and the mother consented to the paternal grandmother as an appropriate supervisor.

6. If the paternal grandmother is available, the children should be able to spend each Wednesday overnight and each alternate weekend with the father from after school Friday to before school Monday. I consider it to be important to minimise the opportunity for the parents to come into contact and changeover at school will ensure the children can transition between households more easily wherever possible. If the paternal grandmother is available then the children should spend a week with the father from 7 September 2018. If changeover needs to occur on a day other than a school day I will make the order proposed by the father in the absence of any submission to the contrary from the mother, this being that any non-school changeovers will be at McDonald’s C Town.

other matters

1. The parties agreed to the appointment of a psychologist to prepare a family report and an Order to that effect was made on 6 August 2018.

2. The father does not oppose the children continuing to live with the mother at this time and accordingly an order will be made to that effect.

3. I do not see a need to make an order varying the statutory provision providing for each parent to have parental responsibility. No submissions were made in relation to parental responsibility.

4. The father seeks an order restraining the mother from leaving the children in the care of the maternal aunt, Ms J, for overnight periods. The evidentiary basis for this injunction rests with some very inappropriate communication allegedly sent to him and members of his family from Ms J and the fact that Ms J allegedly suffers from bi-polar disorder and schizophrenia. I am not persuaded that the injunction sought is justified. There is no evidence the children were exposed to the communications. Further, the father does not oppose the children living with the mother which implies an acceptance that she will make appropriate decisions for their care.

5. The father wishes to attend the children’s school events and extra-curricular activities to which parents are usually invited. In the absence of an order to that effect he will be precluded from doing so because of the temporary protection order and in the absence of submissions to the contrary I propose to make that order.

6. I do not propose to make an order about the parents communicating or the children communicating with each parent. The parents are each represented by lawyers and the paternal grandmother may be prepared to be a conduit for any essential communication between the parents. The children will be spending regular time with each parent so I do not see a need for any order for communication to occur outside of those times. Whether such communication occurs will be at the discretion of each parent subject to any restrictions imposed by the temporary protection order.  

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 10 August 2018.

Associate:

Date:  10 August 2018