Huntly and Huntly & Ors

[2020] FamCA 533

FAMILY COURT OF AUSTRALIA

HUNTLY & HUNTLY AND ORS [2020] FamCA 533

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Family Violence - Where the father seeks an interim order that he spend significant time with the child supervised by the paternal grandparents – Where the mother opposes the order and seeks that the child only spend supervised time with the father each fortnight – Where there are allegations of serious family violence – Where the father has not spent any time with the child for over a year – Where contact centres had previously not been willing to facilitate the supervised contact due to family violence or COVID-19 restrictions – Where the child’s desire to spend time with the father needs to be balanced against any risk – Orders

Family Law Act 1975 (Cth) ss 60B, 60 CA, 60CC

Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Mr Huntly

1st RESPONDENT: Ms Huntly

2nd RESPONDENTS: Ms B Huntly and Mr C Huntly

FILE NUMBER: ADC 42 of 2019

DATE DELIVERED: 6 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Pascale Legal Barristers & Solicitors

COUNSEL FOR THE 1ST RESPONDENT: Mr Roberts

SOLICITOR FOR THE 1ST RESPONDENT: Salisbury Lawyers

COUNSEL FOR THE 2ND RESPONDENTS: Ms Watchel

SOLICITOR FOR THE 

2ND RESPONDENTS:

Resolve Divorce Lawyers

Orders

1. That all previous interim orders be discharged.

2. That the mother shall have the sole parental responsibility for the care, welfare and development of X born … 2010 (“the child”).

3. That the child shall live with the mother.

4. That the child shall spend supervised time with the father at the D Contact Centre, E Street, Suburb F upon the following terms:-

   (a)For two (2) hours each fortnight on days and at times nominated by the service for six (6) visits;

   (b)That the father’s time with the child shall be supervised by Ms G, Manager or such other person as Ms G may nominate;

   (c)That the parties do forthwith contact the D Contact Centre to enrol in the service;

   (d)The father shall bear the costs of enrolment and attendance at the said service; and

   (e)The parties shall obtain at their equal cost a report following the conclusion of six (6) visits.

5. That the child shall spend time with the paternal grandparents as follows:-

   (a)       Each Tuesday from 4.00 pm to 8.00 pm;

   (b)Such further or other times as agreed between the mother and the paternal grandparents.

6. That the paternal grandparents be restrained from bringing the child into contact with or allowing the child to communicate with the father.

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 Huntly & Huntly 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 ADELAIDE

FILE NUMBER: ADC 42 of 2019

Mr Huntly

Applicant

And

Ms Huntly

1^st Respondent

And

Ms B Huntly and Mr C Huntly
 2^nd Respondents

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 7 January 2019 Ms Huntly (“the mother”) seeks orders that she have the sole parental responsibility for X born … 2010 (“the child”), that he live with her and spend no time with Mr Huntly (“the father”).

2. By Response filed 23 January 2019 the father seeks that the parties have equal shared parental responsibility for the child, that the child live with him and spend time with the mother as shall be considered to be in the child’s best interests.

3. The proceedings are also subject to the intervention of Ms B Huntly and Mr C Huntly (“the paternal grandparents”).  By Response filed 27 February 2020 the paternal grandparents seek orders that the child spend time with them each Tuesday from 3.30 pm to 8.00 pm, for extended periods during the child’s school holidays and on special occasions.

4. The proceedings have been listed for final hearing to commence on 2 November 2020.  Trial documents have not yet been filed, however, the mother is to file and serve her trial material by 3 July 2020, the father and the paternal grandparents are each to file and serve their trial material by 4 September 2020.

5. Orders made on 24 October 2019 provided for the child to spend six periods of supervised time with the father at the H Contact Centre or such other contact service as may be prepared to accept the parties’ enrolment.

6. The orders also provided for the child to spend time with the paternal grandparents each Tuesday from 4.00 pm to 8.00 pm and such further and other times as the mother and the paternal grandparents may agree.

7. It is a specific requirement of the orders of 24 October 2019 that the paternal grandparents be restrained from bringing the child into contact with or allowing the child to communicate with the father.

8. It is common ground that the H Contact Centre was not prepared to accept the parties into the service arising from the allegations of extreme family violence made by each of the parties.

9. Inquiries were thereafter made of the Suburb J Contact Centre, however, whilst the Suburb J Service was prepared to accept the family, the service was closed due to COVID-19 restrictions.  In any event, the mother considers that it would be an onerous obligation on her to travel to Suburb J from her home in Suburb K.  She refuses to attend the Suburb J Service even though it may now be prepared to assist the parties.

10. The child has not spent time with the father since early 2019 save for a brief period of observed interaction in the presence of a family consultant.

11. By Application in a Case filed 7 May 2020 the father seeks the following orders:-

    2.That the father spend time with the child as follows:-

    a.Each alternate weekend from the conclusion of school Friday or 3.00 pm if a non-school day until the commencement of school Monday or 10.00 am if a non-school day;

    b.In the intervening week from the conclusion of school Wednesday or 3.00 pm if a non-school day until the commencement of school Thursday or 10.00 am if a non-school day;

    NOTING THAT all time the child has with the father is to be supervised by the paternal grandparents.

12. The proposed order is to occur in addition to but not instead of the current order for the child to spend time with the paternal grandparents each Tuesday from 4.00 pm to 8.00 pm.

13. The father’s counsel submitted that if the Court were minded to make orders as sought by the father, then the paternal grandparents would be prepared to discontinue their time spending arrangement with the child.  Counsel for the paternal grandparents did not hold those instructions and the father’s application goes forward on the basis that the time he seeks would be in addition to the time currently enjoyed by the paternal grandparents.

14. The mother opposes the father’s interim application and seeks orders that the child spend supervised time with the father at the D Contact Centre for two hours each fortnight on days and times as may be nominated by the service for up to six visits.

15. Counsel for the mother confirmed that the service has the capacity to receive the parties and for supervised time between the father and the child to commence within 14 days of the date of hearing.

16. Subject to the payment of $250, the service offers the provision of a report of the observed interaction following the conclusion of the proposed six visits.

Background

1. The parties met in 2004.  Their relationship developed such that in 2008 the father took up residence in the mother’s home with her two children from a previous relationship.

2. The parties were married in 2012 and separated in early 2018.

3. The mother alleges that the father’s behaviour transitioned from being a loving and cordial partner to the father perpetrating physical and psychological violence.

4. The mother’s history of family violence allegedly perpetrated by the father is set out succinctly in her affidavit filed 7 August 2019 at [26].

5. In broad terms, the allegations comprise:-

   (a)Threats by the father to hurt or kill the mother;

   (b)Attempts to inconvenience the mother and cause damage to her property;

   (c)The use of social media to denigrate the mother;

   (d)Referring to the mother in derogatory and offensive terms;

   (e)Vandalising by graffiti property opposite the child’s school and his sports club with the words “Ms Huntly is a slut”[1].

   [1] Affidavit of the mother filed 7 August 2019 at [26 (j), (m) and (r)].

6. The child has been exposed to various aspects of the alleged family violence and vandalism of the child’s sports club has resulted in him being asked to discontinue his membership.

7. The mother has installed video and surveillance equipment and it is not controversial that the father has been the subject of numerous criminal charges arising from his alleged conduct.  The mother is a protected person pursuant to an Intervention Order dated 8 June 2018.

8. As at the commencement of the proceedings, the father was facing 17 counts of breaching his Intervention Order following his release from prison as a result of a recorded threat made by the father on 22 April 2018 that he was going to “…kill all us cunts”[2] and “…kill my eldest two children and blind me”[3] and “…root my dead corpse”[4].

   [2] Affidavit of the mother filed 7 January 2019 at [97].

   [3] Ibid.

   [4] Ibid.

9. The mother’s counsel highlights that notwithstanding the opportunity given to the father to respond to the detailed accounts of family violence at [26] of the mother’s affidavit filed 7 August 2019, the father has not taken up that opportunity.

10. In the father’s affidavit filed 23 January 2019 he provides the following response to the plethora of allegations made by the mother in her first affidavit filed 7 January 2019:-

    14.Without addressing each and every specific allegation set out in the mother’s affidavit, I make the following comments regarding certain allegations made in the mother’s affidavit:

    (a)I deny having made threats to harm or kill the mother or any of her children.

    (b)I deny having assaulted the mother.  I say that I have never laid a finger on the mother or [the child] in anger.

    (c)I deny having broken property such as plates, for example as alleged in paragraph 37 of the mother’s affidavit.  I deny damaging the walls of any the properties that I lived in other than one occasion punched a hole in a wall out of anger.

    (d)However, I say that the mother has caused damage to our property.  For example, on one occasion in February 2018 she kicked a door and a window in at our house in front of [the child].

    (e)I deny having driven erratically with the mother or any of the children in the car as alleged at paragraph 71 of the mother’s affidavit.

    (f)I deny having engaged in controlling behaviour towards the mother.

    (g)I deny having constantly called or messaged the mother or done anything to isolate the mother socially.

    (h)I deny having conducted myself in a way which would have made the mother change jobs as she has alleged in paragraph 29 of the mother’s affidavit.  The mother was a stay-at-home mother until [the child] turned 4 years of age, after which she did a … course and then several jobs, and as she was looking for a new career she changed jobs a few times.  None of those job changes were due to my conduct.

11. The father does admit to having used illicit drugs such as methamphetamine but contends that the mother was complicit by her own drug use.

12. The mother maintains her opposition to the child spending time with the father on any basis other than as strictly subject to supervision.

13. The mother does not consider that the paternal grandparents could or would be suitable supervisors.  It is not suggested that the paternal grandparents do not have a close and loving relationship with the child, however, the mother does not consider that the paternal grandparents would be able to control or restrain the father from what she considers is his earlier attempts to groom the child against her.

14. In the mother’s affidavit filed 13 March 2019, she alleges that in November 2018 she had a telephone conversation with the paternal grandmother wherein she disclosed to the mother that the father was at the paternal grandparents’ home causing damage to their property and had stolen a car from them that had been previously owned by their other son, now deceased. 

15. The paternal grandparents did not make a complaint to the police notwithstanding that it is alleged the father forced his way into their home.

16. It is likely that from a very early stage in the proceedings the paternal grandparents were at the very least aware of the mother’s allegations that the father was threatening her and displaying overt family violence.

17. The mother records the following text message sent by the paternal grandfather to her on 4 March 2019:-

    “Could you please have [the child] call his father as there is no current orders that have been served on him leaving no lawfully (sic) reason to not allow them to contact each other.  Failure to do so is compromising [the child’s] mental health without any legal reason to do so.  Thank you.”

18. The mother asserts that the paternal grandfather continued with his request that the child contact the father notwithstanding her advice that an Intervention Order was currently in place.

19. The mother considers that the paternal grandparents are dismissive of the mother’s allegations and considers that a careful reading of the affidavit material filed on behalf of the paternal grandparents reveals that they lend no support to the mother in respect of the effect of the father’s conduct upon her and the child and are careful not to be brought into the direct conflict between the parties by seeming to support one or the other.

Family report

1. Pursuant to an order made on 24 October 2019, Dr L (“the family consultant”) produced a family report dated 16 March 2020.  The father conceded in interview with the family consultant that he “…had a bit of an issue with drugs”[5].

   [5] Family Report dated 16 March 2020 at 12 [41].

2. He conceded that his conduct may well have caused the mother to experience fear and that even though he agrees that threats were made by him he has learned to empathise.  He acknowledged that he had called the mother a “slut”[6] and admitted that it was not in the child’s best interests to know that his father had referred to the mother in those terms.

   [6] Ibid at 12 [44].

3. The family consultant had the advantage of a report from M Service, dated 18 October 2019,[7] confirming that the father had commenced treatment pursuant to a program known as N Program on 5 September 2019 and had been attending weekly sessions on 12 and 26 September 2019 and 3 and 10 October 2019.  The report writer considered that the father had “engaged well in the psychoeducation and intervention as he identified the side effects of his substance use”[8] but had been reluctant to explore relapse prevention strategies.  The father was observed by the supervisor to exhibit a dominant nature in sessions but was apologetic and did accept feedback.

   [7] Exhibit “2”

   [8] Exhibit “2” page 1.

4. The father had sought anger management counselling from Mr O on 15, 22 and 29 July 2019, 6 August 2019 and 8 and 15 October 2019.

5. Mr O records the father’s following admission in his report dated 18 October 2019:- [9]

   [The father] said that he did however engage in verbal abuse of the mother and threats: e.g. ‘f..k off or I will kill you’.  He said that ‘she knew I was not going to kill her and I knew I was not going to kill her’.   He felt it was wrong to make such a threat ‘because you go to jail’ and also that it is wrong ‘if she is scared’ by it.  [The father] further named his capacity at times to engage in ‘quiet controlled scary talking’ to the mother, and with the intention of intimidating her because he was ‘lashing out’ and wanted to ‘hurt her mentally’.  He said that he does ‘quietly reflect’ on this behaviour and experiences ‘remorse’ but not ‘regret’.  Remorse, he explained, is centred on the other person and requires empathy and is a basis for a ‘real apology’.  Regret, however, is something more selfish.  He felt it important not to say sorry if you did not really mean it.

   [9] Exhibit “3” pages 4 and 5.

6. Mr O concludes that consequent upon the father’s acknowledgment of his use of “tactics of verbal-emotional abuse, intimidation and threats, and property damage in the presence of the mother and the children”[10] the father was starting to gain some understanding as to the consequences of his behaviour upon the mother and the child.

   [10] Exhibit “3” page 7.

7. It was also recorded that the father carries a strong and ongoing resentment towards the mother and ultimately was prepared to pursue further counselling.

8. The family consultant recorded that the child missed his father but thought that his father was “… a bit, like, rude and not thinking straight – he graffitied twice my sports club”[11].

   [11] Family Report dated 16 March 2020 at [63]

9. The child also referred to the father’s graffiti of the property over the road from the child’s school and knew that the father was the perpetrator because the graffiti named the mother and used the term “whore”, an expression which the child remembered that his father had when referring to the mother.

10. The family consultant did not consider that the father’s presentation and the affect of the child inspired confidence in the extent to which the father recognised the level of fear that his coercive conduct had engendered in the mother and the serious consequence to the child of the father encouraging him to call the mother a whore.

11. The family consultant recommended the following:-[12]

    87.The visits at a children’s contact service proceed if the court is satisfied that the service is able to keep [the child’s] psychological safety a priority.

    88.The father engages in ongoing therapy with Mr O with a continued focus on family violence and empathy.

    89.The father undertakes drug rehabilitation/relapse prevention therapy.

    90.The father submits a further hair follicle test.

    [12] Ibid at 22.

12. The father has completed counselling through M Service and a report confirming same is annexed to his affidavit filed 12 June 2020.  The report is the same report dated 18 October 2019 previously relied upon, namely Exhibit “2”.

13. The father annexes a further report from Mr O dated 13 March 2020.[13]  It is in similar terms to his earlier report and whilst his conclusion considers that the father has “furthered his interest in coming to grips with how he may have minimised or downplayed the mother’s experience of his behaviour”[14], it is Mr O’s opinion that more work is required to be undertaken by the father.

    [13] Affidavit of the father filed 28 April 2020, annexure “F-1” page 5.

    [14] Ibid, annexure “F-1” page 8.

14. The report summarises the father’s current thinking in his behaviour in the following terms:-

    He said that the intention was to ‘manipulate her to do or stop doing something’.  He said he ‘knew it would get to her’ as ‘I know what pushes her buttons and she knew what pushed mine’.  [The father] said he would notice the look on her face and in particular her whole demeanour and the look in her eyes, all of which spoke of her experiencing fear in face of the threat.  Further, [the father] asserted that ‘I was not serious but I wanted her to take it seriously’.  That is, he projected the ‘quiet controlled’ talking to intimidate her, while he maintained no intention to carry out what he was threatening.  He said that making such a threat had the effect of ‘shutting down the argument’.  ‘It would take it to a whole new level [that is, making the threat to kill] and ‘she would back down’.  That is, ‘she had taken it just as I wanted her to’.[15]

    [15] Ibid, annexure “F-1” page 7.

Interim parenting considerations

1. In Marvel & Marvel [2010] FamCAFC 101 at [120] the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   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. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order and whilst a Court should generally be risk-averse and cautious, that does not mean that I am obliged to only make orders consistent with the current arrangements and status quo.

3. The competing applications of the parties must be considered pursuant to s 60B of the Act which outlines the objects and principles underlying Pt VII of the Act.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

5. I am obliged to adopt a practical approach in respect to the application of the factors as set out in s 60CC of the Act. Not all of the primary and additional considerations will apply. It may well be an unnecessary distraction to consider those factors which have little or no practical relevance, thereby giving inadequate weight to the factors that need more detailed consideration.

Parenting considerations

1. The parties are in dispute in respect of parental responsibility.  The presumption of equal shared parental responsibility on an interim basis is rebutted in circumstances where the father accepts that he has perpetrated serious family violence intended to hurt, harm and intimidate the mother.

2. The father’s application is predicated upon the further counselling undertaken by the father with Mr O and the presentation of a comprehensive drug analysis test which did not indicate a positive result for any illicit drug or substance.

3. The father is concerned that he has spent little or no time with the child.

4. The Court is obliged to consider that the child should have the opportunity to have a meaningful relationship with the father providing it is safe to do so.  I am obliged to give more weight to issues of family violence and risk to the child when considering the tension between the need to protect the child and maintain a meaningful or caring relationship.

5. I bring to account the mother’s concession that the child has expressed a desire to spend time with the father.  This must be tempered by the observations of the family consultant that the risk to the child may not be overtly physical but rather psychological in its potential for adverse impact.

6. The mother’s fear is not just for her own safety but because she considers that the father may well attempt to groom the child against her.  The use of the words “slut” and “whore” in the presence of the child have had a lasting impact.

7. The father’s proposal seeks that the child spend significant time with the father supervised by the paternal grandparents.  It is not suggested that there should be any period of transition, nor how the proposed order would coexist with the current arrangements for the child to spend time with the paternal grandparents.

8. It could not be said that there is any evidence in the father’s affidavit or in the report of Mr O that would justify the extensive orders that the father seeks in circumstances where the earlier order providing the father to spend time with the child under supervision at a children’s contact service has not been given effect.

9. The father’s counsel was not able to point to the evidence which supports the father’s orders as sought.

10. I consider that there is merit in the mother’s application that there be an early resumption of time between the child and the father supervised at a children’s contact service.

11. The mother proposes that the child spend two hours each fortnight with the father to be supervised at the D Contact Centre.  I accept counsel’s submission that there is capacity for the service to commence the supervised time within 14 days.

Conclusion

1. I propose to make orders in terms of the mother’s response save that the parties should share the cost of any report as to the observed interaction.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 6 July 2020.

Associate: 

Date:  6 July 2020