HOLME & DAILE

[2019] FamCA 971

FAMILY COURT OF AUSTRALIA

HOLME & DAILE [2019] FamCA 971

FAMILY LAW – CHILDREN – Interim orders – Where the children live with the mother – Where the father has not seen the oldest child since Easter 2018 and the youngest child, since August 2018 – Where the parties agree for the children to continue living with the mother – Where the father seeks equal shared parental responsibility and time with the children – Where the mother opposes the father’s application and seeks sole parental responsibility, no time nor communication and restraints on the father from approaching the mother and the children – Where there are serious allegations by the mother of family violence and sexual misconduct perpetrated by the father – Where the children have expressed views that they do not want to see the father – Where an order for time, supervised or otherwise, would risk a loss of relationship between the children and their father and an unpredictable reaction by the mother – Where it is not appropriate in the circumstances for the presumption of equal shared parental responsibility to apply pending further order - Ordered the children live with the mother and spend time with the father at the mother’s discretion.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Mr Holme

RESPONDENT: Ms Daile

INDEPENDENT CHILDREN’S LAWYER: Harpers Legal

FILE NUMBER: NCC 3582 of 2018

DATE DELIVERED: 17 December 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Willoughby

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms O’Rourke

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Harpers Legal

PENDING FURTHER ORDER, IT IS ORDERED

1. That the children Y born … 2005 and Z born … 2010 live with the mother.

2. That any time and communication for the children with the father shall be at the discretion of the mother.

3. That the interim application of the father contained in his Initiating Application filed 15 November 2018 is dismissed.

4. That these orders shall be sufficient authority so as to permit the children’s school to provide the father with copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the children and each parent shall be advised of upcoming presentations and events/functions that relate to the children.

5. That the mother shall ensure that the father is kept informed, by telephone or text or email as soon as reasonably practicable of:

   (a)       Any medical illness or condition suffered by the children;

   (b)       Any medication that has been prescribed for the children;

   (c)Any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (d)       Any other matter of relevance to the long term welfare of the children.

6. That these orders shall be sufficient authority so as to permit each of the parents to obtain medical information in relation to the children from all their treating health professionals and to attend any appointments that the children may have with their treating health professional.

7. That each of the parties are restrained from denigrating the other party or discussing parenting arrangements within the hearing distance and presence of the children or allowing others to do so.

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 Holme & Daile 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 NEWCASTLE

FILE NUMBER: NCC 3582 of 2018

Mr Holme

Applicant

And

Ms Daile

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application for interim parenting orders by Mr Holme (“the father”), aged almost 40, in respect of two children: Y, aged 14, and Z, aged nine.

2. The orders relate to parental responsibility, time and communication, and other specific issues. There is no challenge by the father to the children continuing to live with the mother.

3. The orders sought by the father are opposed by Ms Daile (“the mother”), aged 51. She proposes that the children spend no time and have no communication with the father; further, that there be restraints on the father approaching herself and the children.

History of events

1. The parties met in 2003. At that time, the mother was 35 years of age living with her two daughters from a prior relationship: Ms W, then aged about 12, and Ms X, about seven.

2. The parties agree on three things:

   (1)That they began an intimate relationship in or around 2003/2004;

   (2)That the two subject children were born in 2005 and 2010 respectively; and

   (3)That the relationship between them ended finally around November 2016.

3. How the parties lived and related to each other during those 13 years is unclear. The mother described the relationship as on and off throughout the period, but was clear to say that the parties did not live together other than for a period of two months in around 2010.

4. The father referred to the matter this way: “Ms Daile and I were on-again off-again most of our relationship.” The father does not directly address the issue of common residence, but does not assert that there was one. He does refer to the mother in a way that suggests separate residences. For example, “Generally, Ms Daile had a rule that I was not allowed to drink alcohol at her house.” [1] He also refers to a holiday in 2007 together as “a few nights in shared accommodation at B Town.”[2] The father refers to “staying over” with the mother, and “not staying over” when the mother had her friends and family at her house.

   [1] Affidavit of the father filed 7/05/2019, par 21

   [2] Affidavit of the father filed 7/05/2019, par 28

5. After the relationship ended in November 2016 there was an incident on Christmas Day 2016 in the mother’s house. Thereafter the mother generally declined requests from the father to see the children, although they did see him sporadically.[3] The dispute appeared to revolve around the father having brought alcohol to the Christmas Day lunch. Also the mother advised the father at about this time that she had begun seeing someone else[4] but that relationship was subsequently broken off.

   [3] Affidavit of the mother filed 5/12/2019, par 57

   [4] Affidavit of the mother filed 5/12/2019, par 58

6. In August/September/October 2017, the mother herself ceased all contact with the father. In a police report[5] there is a note by police who attended on a dispute between the parties on 25 January 2018. The note says this:

   … In October 2017, the victim (the mother) after receiving advice from her counsellor and Legal Aid solicitor decided to prevent the POI (the father) from seeing or speaking to the children, and he has had nil contact with them since this time. The POI had never been violent, and the victim is satisfied that the POI is a capable father, but she believed that he was affecting the mental state of the children as he would only visit when it suited him and would disappear for long periods of time, which she says upset and confused them. The POI started contacting the victim by way of phone call, text and email on a daily basis pleading for her to let him see the children, but she informed him that she would not let him see them until Family Court orders were put in place as she was scared he would take off with them and not return them to her… 

   [5] Exhibit 3

7. That record goes on to say that police had examined the calls, texts and emails and concluded that “none contained any material that could be considered threatening or even abusive, only well wishes and pleas to see the children or involvement in a mediation process to attain a resolution”.

8. The mother alleges in her affidavit that it was at this time that she rejected the father for two reasons. First, because of his unwelcome sexualised behaviour towards her; second, because of her own revulsion at a statement allegedly made by the father about what he intended to do on a forthcoming trip to Asia,[6] “The first girl I get, I’m raping the f…… bitch.” The father resolutely denies making any such statement about his intended conduct in Asia.

   [6] Affidavit of the mother filed 5/12/2019, par 60

9. In addition, the children have complained to the mother, she says, about the father’s drinking with his brother, which often resulted in them punching each other.

10. There is evidence that the father’s holiday in Asia had an adverse impact on the mother’s feelings about him. Text messages[7] sent by the mother in December of 2017 reveal a strongly personal reaction by the mother to what she perceived as infidelity by the father to her during his time in Asia, and ended with the words, “Don’t come near me eva (sic) again.”

    [7] Exhibit 2

11. The mother, of course, is entitled personally to take whatever stance she wishes about her relationship with the father. However, it may be the case that she is blinkered as to the independent relationship between the children and the father. As a further possibility, loyalty to the mother may be influencing the children to conceal from her and not to discuss positive feelings they hold about their father.

12. At Easter 2018, the mother facilitated time for the father with the children in her home. This was the last contact between the father and Y.

13. In August 2018, the father attended Z’s football game. This was the last contact between the father and Z, and it may be the case that Z was unaware of the father’s presence.

Application to the Federal Circuit Court - November 2018

1. In November 2018, the father filed this application in the Federal Circuit Court (“the FCC”) proposing time with the children on a more expansive basis than in his subsequent Minute of Order, relied on in this hearing.

2. On 24 January 2019, the mother responded with a Notice of Risk, which set out a raft of allegations about misconduct by the father, including that the children had been exposed to family violence perpetrated by the father and his family;  that the paternal grandparents had verbally abused the mother, “kicking her out of accommodation with the children with no means to get home”; the father physically assaulting the mother, verbally abusing the mother, harassing the mother, the paternal grandparents attempting to force their way into the mother’s home; that the father had failed to get medical attention for the child Z when he had broken his arm; that the mother was concerned about the children being at risk of sexual assault or abuse as a result of sexually inappropriate behaviour that she has observed due to the behaviour of and things said by the child Z.

3. Those matters are raised in the Magellan Report as the mother having had concerns about Z as a baby and a four year old that his father touched and flicked his genitals. Those matters were reported in 2019 to the Department of Family and Community Services. The reference to Z’s broken arm is that it happened in approximately 2014 on a fishing trip with the father; that the father was aware of the accident but not that the arm was broken. That too was reported years after the event to the department.

4. The mother also alleged in her Notice of Risk that the father would become aggressive when drinking alcohol; that he had struck her on the kneecap with a shifting spanner, causing injury; that the father held the mother up by the neck and slammed her against a wall; that the paternal grandparents verbally abused the mother and kicked her out of accommodation; and that the father had sexually assaulted the mother.

5. Other risks were identified as follows:

   ·The father would drink alcohol excessively during the parties’ relationship and would become aggressive;

   ·He would drink to the point of throwing up and/or passing out;

   ·He was thrown out of a bar for using drugs in the bathroom;

   ·He offered drugs to the mother’s nephew, and when refused, took them himself;

   ·He told the mother that he had damaged teeth due to drug use;

   ·The father rarely assisted with care of the children and would not have the children alone.

Child Inclusive Conference

1. The parties and children were referred to a Child Inclusive Conference, which took place on 7 July 2019. The family consultant in the memorandum to the Court made no recommendation for or against time and communication. Rather, there was a recommendation that the family, including the mother’s two elder daughters, be assessed by a psychiatrist for a Chapter 15 Report. The recommendation is understandable given the presentation of the mother and of Z for interview.

Transfer to the Family Court of Australia - September 2019 

1. The matter was transferred by the FCC to this Court, and on 11 September 2019, the matter was allocated to the Magellan Protocol. On 16 October 2019, a Magellan Report was released. The report referred to a risk of serious harm for domestic violence in 2008, which did not proceed to secondary assessment. No other risk of serious harm was substantiated for the subject children. The mother concedes that nothing of concern was reported contemporaneously by her.

2. The matter was then listed for an interim hearing, which took place on 9 December 2019.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Father [Applicant]

   (a)Minute of Order proposed by the applicant father;[8] 

   [8] Exhibit 1

   (b)Notice of Risk filed 15/11/2018;

   (c)Affidavit of the father, filed 7/05/2019; 

   (d)Affidavit of Ms D Holme, the paternal grandmother, filed 14/10/2019, 

   (e)Affidavit of Mr E Holme, the paternal grandfather, filed 14/10/2019;

   (f)Affidavit of Mr F, a friend of the paternal grandparents, filed 24/10/2019;

   (g)Affidavit of Ms F, a friend of the paternal grandparents, filed 24/10/2019.

   The Mother [Respondent]

   (h)Response filed 24/01/2019; 

   (i)Notice of Risk filed 24/01/2019; 

   (j)Affidavit of the mother, filed 5/12/2019;

   Reports

   (k)Child Inclusive Conference memorandum dated 5/07/2019;

   (l)Magellan Report dated 16/10/2019.

Proposals

1. Without conceding to any extent the need for his time with the children to be supervised, the father put forward proposals in the alternative, providing for supervised time with him, either by his parents, or in a supervised contact centre. It was a sensible course to take.

2. There is presently a poor relationship between the mother and the paternal grandparents, although it was almost certainly better in the past.

3. The Magellan Report notes that in January 2008, police attended a verbal altercation between the mother and the paternal grandmother over a trivial matter. However, in the following years, there were holidays and regular weekend and school holiday trips for the children with the paternal grandparents.

4. Very recently, the report was made by the mother that the paternal grandparents would “force their way into the mother’s home”. The paternal grandparents concede going to the home of the mother after the children were no longer permitted to spend time with the father, and being told by the mother’s second-oldest child that they were not welcome, after which they left.

5. The paternal grandmother asserts that until November 2017, she had spent time with the children on almost a weekly basis and that overnight stays and holidays had been arranged by the mother directly in the past.[9]

   [9] Affidavit of the paternal grandmother filed 14/10/2019, pars 13-15

6. The paternal grandparents reject the portrayal of their son, the father, as a person “frequently intoxicated, taking illicit substances, aggressive and driving under the influence”. The paternal grandmother conceded in her material that on occasions, her son drank to excess. There is a police record[10] of two drive with a prescribed concentration of alcohol offences for the father in his very early twenties.

   [10] Exhibit 5

7. The paternal grandmother has come to the conclusion recorded in her affidavit that the mother has “created stories and allegations and exaggerated on events simply to help her out in these proceedings”. Effectively, the paternal grandmother has accused the mother of lying and manipulating. It would make the supervision circumstances quite difficult with the mother knowing that was the view held.

The law

1. When a Court is asked to make parenting orders, certain considerations must be taken into account if relevant. Of those set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”), I note the following.

Views

1. The children have both recently expressed clear views to the Independent Children’s Lawyer, who reported them to the Court that they do not want to see the father.

2. In July 2019, in the Child Inclusive Conference, Y was assessed to be “very guarded”. She said she could not remember the mother and father being in a relationship. That is consistent with there having been no common residence, and the children always living with the mother and their older siblings, with the father visiting from time to time.

3. Y said the following things:

   (1)She was not scared of the father;

   (2)She liked the paternal grandparents and other members of the paternal family; that they were “nice people”;

   (3)That her father drank a lot of beer, and that when he drinks with his brothers, “they drink too much”.

   (4)That she had enjoyed spending time with the father in Easter 2018.

4. In response to the questions did she miss the father, would she like to spend time with the father, would she comply with an order to spend time with the father, Y’s response was that she did not know. Y expressed the view that she spent a lot of time with her siblings, her friends from school and in other activities, and had no time left for the father. When given the opportunity to see the father at the conference if he returned to do so, she said she preferred not to see him.

5. Strikingly, Z refused to speak to the family consultant. There is this quote:  “He curled up on the floor with his head buried in his hands and would not engage at all.” Within the subpoenaed material[11] there is this comment from C Public School arising from a meeting on 4 May 2017. The attendees included Z’s class teacher, the assistant principal and the mother. Under parent comments, there is this statement:

   Mum said he is the same at home and he will not do anything without support. (This is a reference to the child not working in class, but will work with an adult beside him).

   And then this:

   Mum said Z has not seen his dad in months. Z obviously misses his dad and talks in morning circle about seeing his dad on the weekend almost every day, and says he is a 10 out of 10 because he is going to see his dad.

   [11] Exhibit 7

6. On behalf of the mother, it was said that the document could not be interpreted as something that the mother had said. That may be the case and can be examined at trial, but either the mother or one of the other participants in the meeting had made that observation, and it is in very sharp contrast with Z’s complete resistance in 2019 to discussing his father.

Relationships with the parents and other parties

1. The mother in her affidavit[12] said although she would like the children to be able to have a good relationship with their father, she was concerned that the children are not safe with him due to his drug and alcohol abuse, family violence and his inability to care for the children.

   [12] Affidavit of the mother filed 5/12/2019, par 5

Family Violence

1. The mother alleges that as an infant and around age four, the father would touch Z and flick the child’s penis. The child is said to have developed the habit of covering his penis if the father was around when he was naked. The father denied any such conduct.

2. The mother is also concerned that more recently, the father allowed the child to view pornography.

3. There is no substantiated evidence to make findings about those matters.

4. The mother alleges that the father failed to take notice of Z’s broken arm, which is referred to in the Notice of Risk, and that may be the case. The father concedes that he did not realise the child’s arm was broken. It was only when he was taken to hospital by the mother that the break was discovered. No step was taken at the time by the mother by way of complaint. That too is a matter to be explored at trial.

5. The mother alleges about herself that she would wake during the night when the father was staying with her during the course of the relationship to the father having sex with her while she was asleep, and that sometimes her genitals were in an injured state on waking in the morning. The father denies any sexual assaults on the mother, and categorically denies having sexual intercourse with the mother when she was asleep or otherwise unconscious. Clearly, if the matter proceeds to trial, that too is a matter to be examined.

6. The mother also alleges that the father was in the habit of swearing at her, using insulting names and spitting at her and the children at close distance, at their hair, on their clothes, and occasionally, in unguarded moments, into her mouth. The father denies that conduct.

Conclusion

1. The children have never lived in a household with the father. They know very well who he is, and the evidence suggests that there has been at least a good relationship with him in the past. Their mother has been their sole carer as a single parent.

2. Their family unit has been the mother, each other, and their two older sisters, to some extent, and the eldest sister’s three children.

3. To order the children to spend time with the father supervised by the paternal grandparents or in a contact centre over their express wishes has the potential to undermine any future prospect of restoring the relationship they have had with the father and extended paternal family, particularly the paternal grandparents.

4. The mother is vehement and opposed to orders being made and time being spent. There can be no doubt that the children know how passionately opposed she is to them spending time with the father. The mother was in an emotionally dysregulated state for the observation in July 2019 with the family consultant. She lay on the floor at one point, having slipped off the lounge. She also cried intermittently throughout the interview. Z’s conduct in curling up on the floor and refusing to speak is likely to have been related to the mother’s feelings and behaviour on that day.

5. The father and his family contend that the mother is telling lies to the Court about the father to manipulate the outcome of proceedings. Further, that she has most recently reported uneventful matters as if they were contemporaneous problems for the same reasons.

6. The mother has raised some very serious allegations about the father, his drinking, drug use, sexual misconduct towards her and towards Z, and verbal and psychological abuse, particularly of Z, in a cruel and mocking way. It is impossible to make findings on untested evidence. The allegations are serious.

7. The father of the mother’s two older children is said by the mother to have been a perpetrator of family violence on her. A very specific death threat[13] caused her to leave the town where she was living with her two oldest children and transfer urgently to this area to escape him. The mother apparently consulted a psychiatrist after those events. There is no evidence before me about the state of the mental health of the mother then or now.

   [13] Affidavit of the mother filed 5/12/2019, par 21

8. One possibility is that the mental health of the mother continues to be adversely affected by the events of that first relationship. Equally, that may not be the case at all.

9. In 2006, the relationship between the mother and her eldest daughter W came to the attention of child welfare authorities. The mother and also the father in these proceedings, were assessed to be using inappropriate physical discipline towards that child, and harsh rejecting language of her by the mother.

10. The family consultant has recommended that a Chapter 15 expert in psychiatry assess the family as a whole, including those two older daughters. There is presently no clarity on the factual disputes about behaviour of the father and the current mental health and psychological state of the mother. That will require evidence at trial.

11. Until then, the balance of risk between the loss of the relationship between the children and the father and the safety of the children falls in favour of not making orders for time, supervised or otherwise. There will likely only be one opportunity to restore relationships. To force the issue before the children are prepared to meet with their father again creates a real risk of failure.

Parental Responsibility

1. When making a parenting order in relation to a child, the Court must apply a presumption of equal shared parental responsibility (s 61DA of the Act). In this case, the father seeks that order on an interim basis. The mother proposes sole parental responsibility for herself.

2. When, as here, 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 apply (s 61DA(3) of the Act). I consider that this is such a case for the following reasons.

3. The outcome of it is that no order for time and communication is to be made.

4. The restraints sought by the mother will not be made as there is no proper basis for making protective orders for the children.

5. It would be an improper outcome for sole parental responsibility to be ordered or the presumption of equal shared parental responsibility to be applied in circumstances where parenting orders have been considered and not made because of the limits of the evidence and the seriousness of the allegations.

6. Orders are made for the children to live with the mother and for any time and communication between the children and the father to be at the discretion of the mother.

7. That order is made in the knowledge that it is highly probable that the mother will decide that there should be no time spent and no communication at all.

8. Orders are made accordingly.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Clearly delivered on 17 December 2019.

Associate: 

Date:  17 December 2019