JENNINGS & JENNINGS

[2018] FamCA 665

FAMILY COURT OF AUSTRALIA

JENNINGS & JENNINGS [2018] FamCA 665

FAMILY LAW – CHILDREN – With whom a child spends time – Interim arrangements – Family violence – Risk – Child’s views – Best interests of the child – Appointment of Independent Children’s Lawyer.

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

Marvel v Marvel [2010] FamCAFC 101

APPLICANT: Ms Jennings

RESPONDENT: Mr Jennings

FILE NUMBER: DNC 51 of 2018

DATE DELIVERED: 31 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 21 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Czislowski

SOLICITOR FOR THE APPLICANT: Ward Keller Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

UNTIL FURTHER ORDER:

1. That X born … 2005 (“X”), Y born … 2007 (“Y”) and Z born … 2013 (“Z”) (collectively “the children”) live with the mother.

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

   (a)Each alternate weekend from the conclusion of school (or 3 pm if a non-school day) on Thursday to the commencement of school (or 10 am if a non-school day) on the following Monday commencing 6 September 2018;

   (b)For one half of the school holidays and in default of agreement for the second half.

3. That the children have telephone communication and/or Skype communication with the father each Monday, Wednesday and Saturday that they are not in his care at 7 pm with the father to initiate the call.

4. That pursuant to section 68L of the Family Law Act 1975 (Cth) (“the Act”) the interests of the children be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure the appointment of an Independent Children’s Lawyer.

5. That all applications for final orders be adjourned for hearing before Justice Berman in the two week sitting commencing 21 January 2019 at 10 am as a 3 day matter and that the evidence in chief of all witnesses be given by affidavit.

6. That by 4 pm on 19 October 2018 the applicant file and serve upon all other parties:-

   (a)An amended application setting out with precision the orders to be sought;

   (b)The affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c)A financial statement that complies with Chapter 13 of the Family Law Rules.

7. That the applicant pay all setting down and trial fees by 14 December 2018.

8. That by 4 pm on 14 December 2018 the respondent file and serve upon all other parties:-

   (a)       An amended response setting out with prevision the orders to be sought;

   (b)The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c)A financial statement that complies with Chapter 13 of the Family Law Rules.

9. That by 4 pm on 11 January 2019 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

10. That by 4 pm on 14 December 2018 the Independent Children’s Lawyer file and serve upon all other parties any affidavit material relied upon.

11. That no party file any further material other than as provided for by these orders.

12. The prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ Outline of Case.

13. That pursuant to s 62G(2) of the Act the parties and the children attend upon and at the direction of a family consultant (or Regulation 7 consultant) nominated and appointed by the Director of Child Dispute Services of the Brisbane Registry for the purposes of the preparation of a family report to be completed and released by 14 December 2018.

14. That the parties have liberty to approach the Registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.

15. That liberty is granted to each party and the Independent Children’s Lawyer to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.

16. That the practitioners for the parties or any self-represented party file and serve electronically to … by 4 pm on 16 January 2019 the following:-

    (a)       A concise set of orders to be sought if different from those already filed;

    (b)A list of the applications and affidavits to be read out and if not the whole affidavit the relevant paragraphs relied upon;

    (c)       A list of assets and liabilities;

    (d)       A list of objections to evidence upon which rulings are required; and

    (e)       A bullet proof summary of argument in relation to the issues in dispute.

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 Jennings & Jennings 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 DARWIN

FILE NUMBER: DNC 51 of 2018

Ms Jennings

Applicant

And

Mr Jennings

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 17 May 2018, Ms Jennings (“the mother”) seeks final orders that X born in 2005 (“X”), Y born in 2007 (“Y”) and Z born in 2013 (“Z”) (collectively “the children”) live with the mother and that she be permitted to relocate the children to New Zealand.

2. Initially, on an interim basis she sought that the children spend time with the father for two hours each fortnight supervised by B Group, Suburb C.

3. The mother’s interim application was listed on 29 May 2018 and was further adjourned to 29 June 2018 and then administratively adjourned to 21 August 2018 to be heard in the Darwin Registry.

4. Mr Jennings (“the father”) had not filed a response by the 29 May 2018 listing but was represented by solicitors.

5. In anticipation of the adjourned hearing, an order was made pursuant to s 11F of the Family Law Act 1975 (Cth) (as amended) (“the Act”) that the parties and the children attend upon a family consultant.

6. Following interviews with the parties and the children, a Child Inclusive Conference Memorandum dated 25 June 2018 was prepared and tendered to the Court.

7. The order made 29 May 2018 also contained a notation that the applications for final orders are to be listed for final hearing in the week commencing either 21 or 28 January 2019.

8. By Response filed 18 June 2018, the father opposed the relocation of the children and on an interim basis seeks that the parties have equal shared parental responsibility for the children and that they live with each of the parties as may be agreed, but failing agreement each alternate fortnight with each of them.

9. On 16 August 2018 the father’s solicitors filed a Notice of Withdrawal. The father appeared self-represented and was clear that he did not intend to instruct solicitors either for the interim proceedings or the final hearing.

10. Whilst he was able to rely upon his Response and Affidavit filed in support that had been prepared by his former solicitors, he acknowledged that he would find it difficult to undertake the task of trial preparation and that the Court should have an expectation that he was unlikely to file any affidavits of evidence in support of the orders he seeks.

11. It is a reasonable summary of the father’s presentation that he wanted a return to the previous parenting arrangements where the children’s care was shared each alternate fortnight.

BACKGROUND

1. The father was born in 1970 and is currently employed on a full-time basis in management. The mother was born in Sydney, Australia in 1972 but was raised in New Zealand. The mother moved to Australia in approximately 1994 and is employed on a full-time basis in finance. The parties were married in 2006 and separated in 2016.

2. Prior to separation the family lived in Suburb D in the Northern Territory (“the former matrimonial home”).

3. A domestic violence order was put in place on 19 February 2018 which does not permit the father to have contact with the children other than in accordance with a Parenting Plan or a Family Law Order.

4. The parties are not currently in agreement as to the future parenting arrangements for the children.

5. The mother proposed that the father’s time with the children be under the supervision of B Group Suburb C comprising two hours a fortnight.

6. There were some visits, but the father considered that his time with the children was occurring in unfamiliar circumstances and he has refused to re-attend.

7. Since 14 February 2018 the father’s time with the children has been very limited.

8. X currently attends E School and is in year 7. The parties agree that she is a high achiever. Y attends Suburb D Primary School and is in year 5. There are no significant concerns in respect of his education or milestones. Z attends Suburb D Pre-School five mornings a week.

9. After separation in 2016 the parties shared the care of the children initially on a week about basis and then on a fortnightly basis. The mother alleges that the father kept the children from her for a period of six weeks immediately following separation, three weeks in July 2017 and a further four weeks in October 2017. The father concedes that there were extended periods when the children did not see their mother, but contends his retention of the children was reasonable in the circumstances as they existed at the time.

FAMILY VIOLENCE

1. The mother alleges a long history of family violence comprising physical and emotional abuse perpetrated by the father.

2. According to the mother, the catalyst for the final separation was a threat by the father to damage the former matrimonial home following extensive home renovations.

3. An argument ensued over a request by the father to inspect and access information on the mother’s phone. The mother alleges that the father “hacked” her phone, read her messages and then used highly offensive language to confront her.

4. She alleges that there was then a physical altercation. The mother left the premises and slept in her car. She returned the following day and found that the lock on the gate had been changed and she was denied access to the premises. She did not thereafter have contact with the children for a period of six weeks.

5. The mother considers that the father’s behaviour has not improved since separation and their interaction is notable for his continued abuse.

6. She states that some stability was only able to be restored following an interim domestic violence order made on 19 February 2018 listing the mother and the children as protected persons.

7. The father does not deny that his relationship with the mother was highly conflicted. He counters her allegation that he was the perpetrator of family violence by denying that he has ever been physically or emotionally abusive towards the mother. He disputes the mother’s allegation that he threatened to kill himself in 2010 or shortly prior to separation. He denies that there was ever an incident in which he threatened to cause damage to the home, or that he said the following to the mother:-

   “I’ll fucking smash all this shit up you cunt”, “fucking make me get all this done so you can fuck off and go with your mates”, and “that’s what you get when you fuck me over”.

8. He places a different gloss over the altercation involving the phone, but does not deny the mother’s allegation contained at [31] of her affidavit filed 17 May 2018 that during the course of the argument he said the following:-

   (a)“You’re a fucking cunt”;

   (b)“Talking about me to all your friends, they don’t even know me”;

   (c)“Who are you fucking now?” “I know you are up to something, you’re a lying cunt”;

   (d)“You’re fucking every guy at your work”.

9. According to the father, the interaction between the parties has involved the police and whoever is at fault, it is apparent that the children are clearly involved in the conflict.

10. The parties have been unsuccessful in protecting the children from their toxic relationship.

CURRENT PROPOSALS OF THE PARTIES

1. The mother’s position has changed since the publication of the Child Inclusive Memorandum. She now considers that if the father would continue his anger management counselling it would be appropriate for the children to spend three or four days a fortnight with him unsupervised. She worries that the father is not able to restrain his use of derogatory language concerning her in the presence of the children, but tempers that concern with the clear importance to the children of resuming and maintaining a meaningful relationship with him.

2. The father is steadfast in his position that the parties should return to the post-separation shared care arrangement.

3. Annexure “A” to the father’s Affidavit filed 18 June 2018 is a report from his psychologist Mr F. The father has had six therapeutic sessions with Mr F who notes that:-

   [The father] still carries a lot of anger about the situation with his estranged wife and children. He makes no bones about the fact that he resents his ex-wife for ‘cheating’ on him while he was stay-at-home-dad renovating their house, so she could pursue her career, then her taking the children away.

4. Mr F considered that the father was “conscientious and capable of caring for himself and his family” but “can come across as controlling or bossy when combined with his direct communication style”.

5. Other than recognising that the father “still carries a lot of anger”, the report is of little assistance in its failure to comment on the extent to which the father may have gained insight that his inability to compartmentalise his dislike and mistrust of the mother presents as a risk to the children.

CHILD INCLUSIVE MEMORANDUM

1. The family consultant recorded that notwithstanding the differing views of the parties, there was a pattern of domestic violence which was “consistent with situational couple’s violence where both parties have a role in instigating the domestic violence”.

2. Of concern is the family consultant’s assessment is that there is a medium to high risk of further domestic violence if the parties come into direct contact with each other. Of the two, the father was assessed as struggling to self-regulate his emotions when dealing with the mother.

3. The mother was aware that the father’s anger was directed to her and was prepared to concede that it would be unlikely the father would harm the children in any way if his time with them was unsupervised. The need for supervision was not to protect the children from physical harm but rather, because of the father’s seeming inability to keep private his low regard for the mother.

4. The parties agreed that their co-parenting relationship is non-existent. Communication between them is all but impossible and any suggestion that they could engage in consensus parenting was fanciful. The father was frank in his self-assessment that the breakdown of the relationship and the resultant litigation has had a significant deleterious impact on him emotionally and his ability to exercise self-restraint when dealing with the mother. The mother impressed as more balanced and whilst willing to work on her dysfunctional relationship with the father, there is nothing to suggest that either party would be successful.

5. In interview the children were impressive in their presentation. They presented as intelligent, cheerful and articulate.

6. The children were aware of the conflict between their parents and understood that the principal focus was the mother’s intention to relocate their residence to New Zealand.

7. Each of the children expressed their affection and attachment to the father and recognised that whilst he was quick to anger, when dealing with them “he loves us and cares for us”.

8. They were sad that they had not spent time with their father since February 2018 and the prospect of unsupervised time was exciting.

9. The family consultant strongly supported a resumption of time with the father and considered that their wishes should be given real and substantial weight.

10. In circumstances where there had been an equal shared care arrangement that had worked well, the family consultant promoted a reinstatement of the arrangements as a possible way forward.

TERRITORY FAMILIES DOCUMENT

1. The mother’s counsel tendered an extract from the subpoenaed material. The departmental worker assigned to the overview of the family had cause to speak to the children and their teachers.

2. Whilst it is recognised that the provenance of the content of the progress notes may be uncertain, there are observations which suggest that the Court proceed cautiously in terms of the recommendation of the family consultant that a possible way forward is to resume the shared parenting arrangements.

3. In speaking to X she confirmed that she was aware of the dispute between the parties and had witnessed the father yelling at the mother whilst waiting for the police to arrive. She indicated that she was perceptive in expressing her concern that Z would be adversely affected by the parental conflict.

4. Y was scared when his father yelled and in particular when he swore about the mother. It is recorded that Y considered his father:-

   swears F, C words at mum in the house, in the car or anywhere. Mum doesn’t do anything, she stays quiet and doesnt say bad things about dad. [Y] advised he feels bad when dad yelled at him; he feels his body shakes and is scared.

5. Y’s presentation to the worker gave the impression that the child was “intimidated by the father” and he is recorded as saying the following:-

   Dad will get very angry if I wanted to say nice things about mum so I cant say what happens at mums because he will yell and swear which makes me sad and scared.

6. The teachers at the children’s school and pre-school were also consulted. The Principal of Suburb D Primary School noted that Y appeared lethargic and unmotivated. There were difficulties in the school contacting the father and he appeared to present as hostile and aggressive. The observations of the Principal were such that both parents are not able to attend parent-teacher meetings together.

7. Z’s pre-school teacher found the father to be unapproachable, angry and hostile. She considered that he was very narrow minded and not able to see another point of view. His interaction with the pre-school is in stark contrast to the observations of the mother as being engaging and keen to be of assistance.

8. The Director of Z’s preschool observed that Z had a good relationship with the father, but it was noted that he was at times extremely angry and aggressive towards childcare staff blaming them for adverse health considerations such as nits and a hand, foot and mouth condition affecting the child.

9. The assessment is that the older children have been placed at risk of emotional harm by the father’s aggressive behaviour and demeaning remarks about the mother.

10. The mother was assessed as having acted protectively towards the children.

11. The father does not accept any criticism that is contained in the material tendered and strongly submits that for reasons not immediately apparent, all those involved in the child’s care including their teachers have taken an unjustified set against him and have either embellished, exaggerated or made up their purported observations that he interacts aggressively, or is quick to anger.

LEGAL PRINCIPLES

1. The father’s presentation to the Court was problematic. He did not appear to recognise that the Court was primarily focussed on the best interests of the children and was not part of a vendetta against him.

1. He was determined in his view that he would not return for counselling and would not engage in the proceedings in respect of filing any affidavits of evidence.

2. He could see no other way forward than the mother abandoning her application to relocate the children to New Zealand, coming to an arrangement in respect of property settlement and a return to the post-separation shared care of the children.

3. The current proceedings require interim orders that will provide for the parenting arrangements pending a final hearing in January 2019 and the delivery of judgment soon thereafter.

4. I consider that the parties should have equal shared parental responsibility in respect of the children. There is nothing at this stage to suggest that it should not occur.

5. I am then obliged to consider whether there should be an order for equal shared care.

6. I propose to consider the objects as set out in s 60B of the Act that ensure the best interests of the child are met. In determining their best interests, I apply the provisions of s 60CC both as to primary and additional considerations.

7. It is in the children’s best interests that they maintain a meaningful relationship with both parents. There is however a risk in relation to the emotional harm that the children may be subjected to by reason of the father’s apparent inability to refrain the denigration of the mother.

8. The children’s wishes, in particular those of X and Y, must be given significant weight. The extent to which they wished to resume a relationship with the father and the indication given as to the closeness of their attachment with him, were matters that impressed the family consultant and promoted a possible way forward by reference to a resumption of shared care.

9. Whilst the parties differ in their assessment of the extent to which each of them is a perpetrator of family violence, by reference to the reports of the children’s teachers and the remarks made by the children, I am left in little doubt that these children are at risk of emotional harm as a result of the ongoing parental conflict.

10. I do not consider that the allegations made by the parties should be considered as “low level”. Fortunately the children still have a strong emotional attachment to each of their parents, but at this stage it is not easy to determine the long-term harm that may well be experienced by them arising from the family violence they have experienced and in particular their father’s angry outbursts and disposition.

11. In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the extent to which a cautious approach should be adopted in interim proceedings, particularly where risk factors were identified:-

    [120]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 (s 61DB).

    And as further appears:-

    [122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

    In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

    [123]Later, at [100] their Honours amplified their comments and said:

    The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

CONCLUSION

1. The potential for the children to have been adversely impacted by family violence in the home leading up to separation and the ongoing conflict between the parties post-separation is a significant risk factor that needs to be given weight.

2. The father’s proposal that the parties should resume a shared care arrangement is untenable. The parties acknowledge that they are not able to cooperate or communicate at any effective level. The family consultant considers that if the parties come into contact with each other the risk of a resumption of family violence is high. There are signs that the children have been adversely affected by their observations of poor behaviour between the parties.

3. Of importance are the remarks of the children’s teachers in relation to the father’s aggressive demeanour and presentation. I am not able to determine on the balance of probabilities whether the reports of the teachers concerning the interaction with the father are borne out. I am able to find that stability for the children at this stage is important and in circumstances where the father openly displays a defiant attitude, his proposal that the parties should return to a shared care arrangement is untenable.

4. The father’s attitude to a resumption of counselling for anger management is clearly that he does not consider it necessary and if required or forced to attend further counselling it would be a futile exercise.

5. The children anxiously seek to resume a relationship with the father in an unsupervised environment. Such an outcome appears strongly supported by the family consultant. The mother is prepared to concede such an outcome provided the father would resume further anger management counselling.

6. The mother concedes that the father does not represent a physical risk to the children but remains concerned that his ongoing denigration of her will continue unabated.

7. The children appear to be able to compartmentalise their father’s volatile demeanour and have retained strong attachment with each of the parties.

8. Accordingly, I propose to order that the children live with the mother and spend each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday and one half of the school holidays.

9. The mother seeks the appointment of an Independent Children’s Lawyer.  Her application is to seek permission to relocate the children to New Zealand.  The father has indicated he may not assist the Court by filing further affidavit material.  X has expressed initial opposition to relocation. 

10. The Court would be assisted by the appointment of an Independent Children’s Lawyer.

11. I will list the matter for a final hearing in the two week sitting commencing 21 January 2019 and make the necessary trial directions.

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

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 31 August 2018.

Associate:

Date:  31 August 2018