Kearns and Kearns

[2016] FCCA 2645

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNS & KEARNS [2016] FCCA 2645

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 7 & 5 – allegations of family violence – parties have been separated for a significant period of time – following separation children have spent extended periods of time in the care of the father including overnight time – mother has withheld children following instigation of proceedings on basis of protective concerns – father alleges mother’s actions are tactically motivated – allegations of family violence and breach of family violence orders supported by court convictions – nature of interim hearing – section 60CC factors – best interests.

Legislation:

Family Law Act 1975, ss.4AB; 4(1); 60CA; 60CC; 60B; 61DA; 65DAA

Cases cited:

Cowling v Cowling (1998) FLC 92-801

Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

JG & BG (1994) 18 Fam LR 255

Applicant: MS KEARNS

Respondent: MR KEARNS

File Number: ADC 1860 of 2016

Judgment of: Judge Brown

Hearing date: 30 September 2016

Date of Last Submission: 30 September 2016

Delivered at: Adelaide

Delivered on: 13 October 2016

REPRESENTATION

Counsel for the Applicant: Ms P Kari

Solicitors for the Applicant: Barnes Brinsley Shaw Lawyers

Counsel for the Respondent: Ms J Cocks

Solicitors for the Respondent: Lempriere Abbott McLeod

ORDERS

1. The parties and their legal representatives attend a Conciliation Conference with a Registrar of the Court on 15 March 2017 at 9.15am.

2. The Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulations 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

3. At least 28 days prior to the Conciliation Conference, the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

4. At least 28 days prior to the Conciliation Conference, the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

5. The parties do all things necessary to commission the preparation of a family assessment report by a psychologist to be agreed between them at their joint expense with the report to be available as soon as it is practicable but no later than 28 February 2017.

   Until further or other order:

6. The children of the children of the marriage X born (omitted) 2009 and Y born (omitted) 2011 (hereinafter referred to as “the children”) live with the wife.

7. The children spend time with the father as follows:

   (a)From 9.00am on Friday 14 October until 4.30pm on Saturday 15 October 2016;

   (b)During school terms as follows:

   (i)on alternate weekends, from the conclusion of school Friday until the commencement of school the following Monday, commencing 21 October 2016;  and

   (ii)on alternate Wednesdays from the conclusion of school until 7.00pm that day, commencing 26 October 2016;

   (c)for one half of the end of year 2016/2017 school holidays so that the children spend three periods of seven consecutive days with the father, the weeks to be agreed but failing agreement to be the first, third and fifth week of the holiday from 9.00am Monday until 9.00am the following Monday, with the arrangements to be suspended for the period of Christmas;

   (d)from 2.00pm on 25 December 2016 until 12.00pm on 26 December 2016, unless the parties agree otherwise in respect of arrangements for the celebration of Christmas.

8. The mother spend time with the children for Christmas, unless the parties agree otherwise, from 12.00pm on 24 December 2016 until 2.00pm on 25 December 2016.

9. The children be exchanged between the parties at their school or when school is not in session at another location to be agreed between them and failing agreement to be the (omitted) Police Station.

10. The father’s time with the children set out in Order (7)(a) is subject to the husband being able to take time off from his employment during the period so specified.

11. Until further order the husband is restrained and an injunction be granted restraining the husband from:

    (a)criticising or denigrating or making any threats towards the wife or members of the wife’s family to or in the presence of the children or allowing any other person to do so;

    (b)allowing the children to observe any movie and/or program including any horror movies and/or pornography that has a rating other than General, including but not limited to excluding any such movie or programme that has a PG (parental Guidance Recommended), M (Mature Audience) and/or MA 15+ Rating or allowing any other person to allow the same;

    (c)attending at, or in the vicinity of the (omitted) Primary School and/or removing the children therefrom, save and except to facilitate the husband’s time with the children as may be ordered by this Court;

    (d)withdrawing any funds from:

    (i)(omitted) Bank Business Loan in the name of Kearns Family Trust Account No.: (omitted) secured by mortgage no: (omitted) over the property at Property C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume (omitted) Folio (omitted) which property is registered in the sole name of the wife’s mother Y and in relation to which loan the wife’s mother is guarantor (“the (omitted) Bank Business Loan”);

    (ii)(omitted) Bank Investment home loan account no: (omitted) secured by Mortgage No: (omitted) over the property at Property O in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume (omitted) Folio (omitted) which property is registered in the joint names of the husband and wife (“the (omitted) Bank Home Loan”);

    (e)Selling, disposing of, encumbering or otherwise dealing with his interest in:

    (i)Kearns Pty Ltd (omitted) (“the Company), and the Kearns Family Trust (“the Trust”) including but not limited to the plant and equipment, vehicles and any funds held in the name of the Company and/or Trust save and except in the ordinary course of operating the company and Trust;

    (ii)All or any vehicles and effects owned by the husband personally;

    (iii)All or any funds owned by the husband personally save and except in the ordinary course of living;

    SAVE without the prior written consent of the wife or leave of the Court.

12. The husband do forthwith do all such acts and things as may be necessary to prepare and lodge the income tax returns and financial statements for Kearns Pty Ltd and/or the Kearns Family Trust for any financial years that are currently outstanding up to and inclusive of 30 June 2015 financial year and then provide copies of the same to the wife’s lawyers together with copies of any Notices of Assessments.

13. The husband do forthwith do all things necessary to prepare and lodge his personal income tax return for all financial years outstanding up and inclusive of the financial year concluded 30 June 2015 and then provide copies of the same to the wife’s lawyers together with any Notices of Assessments.

14. The husband do sell the (omitted) Contract upon terms and conditions as agreed between the husband and wife or as fixed by the Court and the gross proceeds of sale shall be disbursed as follows:

    (a)In payment of all costs of and incidental to the sale;

    (b)In discharge of the (omitted) Bank Business loan;

    (c)Any remaining monies (if any) to be placed in an interest bearing deposit account in the joint names of the husband and wife (with both of their signatures required to access the funds thereafter) with such funds to remain therein pending final determination of the wife’s Application for Final Orders or the joint written consent of the parties.

15. The matter is adjourned to 29 March 2017 at 9.30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1860 of 2016

MS KEARNS

Applicant

And

MR KEARNS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim proceedings relating to arrangements for the care of two children: X born (omitted) 2009 and Y born (omitted) 2011.  The parties concerned are Ms Kearns “the mother” and Mr Kearns “the father”.

2. The parties married on (omitted) 2007.  They finally separated in late 2013.[1]  They became divorced, on the father’s application, on 11 July 2016.  The mother did not oppose the divorce application.

   [1] On the mother’s evidence on 9 November 2013; according to the father’s divorce application on 28 October 2013

3. As required, the divorce application contained details regarding care details for the children of the marriage concerned.  Under the heading current details for the child – time and communication with the child, the father indicated as follows: father – 45% mother – 55%.   It was further indicated that both children enjoyed good health.  The mother did not formally refute this statement.

4. In response to the question in the divorce application: Do you plan to make any changes to these current arrangements? the father answered as follows:

   “Issues of custody – I intend on applying for 100% custody for both my children, as I fear for my children’s safety and wellbeing under the care of the mother due to ongoing alcohol and drug use”

5. Accordingly, it is the father’s position that there is a long standing arrangement by which the children spend substantial and significant periods of time with him.  He asserts that this arrangement has been in place since shortly after the parties separated and certainly since the start of early 2015. [2]

   [2] See father’s affidavit filed 13 September 2016 at paragraphs 4 and 26

6. In particular, the father asserts that the children spend time with him each Wednesday from after school until 7.00 pm and on each weekend.  The children apparently attend (omitted)’s in (omitted), although Y has only recently started there.

7. In these circumstances, in his response filed on 13 September 2016, the father seeks interim orders, which would see the children living with him for three nights per week and with their mother for four nights per week.  Specifically, he seeks an order that the children spend time with him from after school on Wednesday of each week until 7.00 pm.

8. The mother acknowledges that the father has spent reasonably regular time with the children since mid-2015.  She describes this time as being, during school terms, from Friday afternoon to Sunday afternoon and during school holidays, on an alternate weekly basis.  The children are apparently exchanged primarily at their school and when school is not in session, at the (omitted) Police Station.

9. The mother commenced these proceedings on 5 August 2016.  She seeks orders in respect of the division of the parties’ martial property and parenting orders in respect of X and Y.  In respect of the children, it is the mother’s position that the father should only spend professionally supervised time with the children, at an approved children’s contact centre.

10. Necessarily, such a contact centre could provide only two hours of time per fortnight and this time is likely to be available only after a significant waiting period.  Failing such an outcome, the mother proposes that the father should have forty eight hours of time with the children, each fortnight, provided that the children are subject to adult supervision throughout.  Ms Kearns also seeks a court order requiring Mr Kearns to undergo a psychiatric examination.

11. The parties are agreed that it is imperative that a suitably qualified expert be engaged to prepare a family assessment report, at their joint expense, as soon as possible.  The experts envisaged are not likely to be able to provide such a report until February/March of 2017.

12. They also agree that it is appropriate that an injunction be made restraining the father from denigrating the mother in the presence or hearing of the children; allowing the children to view entertainment which is other than G classification; and attending at the children’s school for anything other than legitimate purposes.

13. They also agree that the property aspect of the proceedings should be referred to a conciliation conference and the usual orders made in respect of discovery and the exchange of valuation information.  Mr Kearns also agrees to be bound by a comprehensive injunction regarding the disposal of property.

Background

1. It is the mother’s case that throughout the parties’ marriage and afterwards, she was subjected to horrific acts of family violence by the father.  It is her case that several significant episodes of violence have been documented by the police and the courts.  As such, the father is not in a position to deny them.

2. In addition, it is Ms Kearns’ case that she was subjected to other significant episodes of violence, which occurred within the private confines of the parties’ home and which are not therefore capable of independent corroboration.  The mother also asserts that the children, particularly X, have been exposed to episodes of the father’s violent behaviour and this has had a detrimental psychological effect on them.

3. The mother has subpoenaed records from X’s school.  It is her case that these documents indicate that X is a troubled child, who is acting out in a violent manner, which is causing the school authorities great concern.  It is the mother’s case that this behaviour has come about because X has been exposed to the father’s violent behaviour and because the father regularly denigrates her to the child.

4. More recently, the mother deposes that the child has been indicating to her an intent to self-harm in a serious and concerted manner.  It is the mother’s evidence that X has also been speaking to her in an abusive and denigratory fashion, which she asserts can only be a consequence of the child being exposed to his father’s negative view of her.

5. In all these circumstances, it is the mother’s case that the court needs to take urgent action to protect the children from the father’s violent and abusive conduct.  She acknowledges that, up to this stage, the children have interacted regularly with their father. 

6. However, she asserts that, until recently, she has “not had the courage to challenge Mr Kearns in respect of these arrangements because of her fear that he would retaliate against her in some violent or distressing manner.”  It is her evidence that “remains terrified” of the father.

7. As previously indicated, the mother’s proceedings were commenced on 5 August 2016.  They were served on the husband on 19 August 2016.  Around the time the documents were served, the mother and children went interstate for a period of approximately a week, without first advising the father. 

8. The authorities at (omitted)’s were however advised that the children would not be attending school and were alerted to what the mother identified as a potentially inflammatory situation, given the absence of formal orders dealing with arrangements for the care of the children.   She expressed concern that the father might take things into his own hands and collect the children from school.

9. The children have returned to school following the father providing an undertaking, to the mother’s solicitors, that he will not remove the children from their school.  However, Mr Kearns has not spent any time whatsoever, with X and Y, since around 19 August 2016, notwithstanding his undertaking, as the mother has not been willing to allow time, until such time as her application has been dealt with by the court.

10. In all these circumstances, particularly the longstanding arrangements for him to spend time with X and Y, the father submits that the court must look very closely at the timing of the mother’s actions, which he contends are a tactically motivated exercise designed to secure some form of tactical advantage over him in these proceedings.

11. Mr Kearns does not dispute that he has significant prior convictions, for violence, included a suspended sentence of imprisonment imposed by the District Court of Adelaide.  However, it is his position that there are explanations for his conduct, on each such occasion and it is a gross exaggeration for the mother to assert that she remains fearful of him.

12. In addition, it is Mr Kearns’ case that X’s behaviour has been problematic for many years.  In these circumstances, he asserts that the mother has seized on this behaviour, in an opportunistic fashion, in order to advance her case.  He denies that he has denigrated the mother to the children or is directly the cause of X’s acting out behaviour.

13. To say that these proceedings have been hard fought would represent a significant understatement.  Each party has filed multiple and lengthy affidavits.  In addition, documents have been obtained from SAPOL; Families SA; and (omitted)’s school.

14. As a consequence of this, between 5 August 2016 and 28 September 2016, twenty four documents have been placed on the court file, which now consists of two separate folders.  This material has been prepared in anticipation of an interim hearing, which necessarily must occur in a truncated form, without cross-examination.

15. The extent of this material places a significant burden on the court.  It is also my impression that no great effort has been made, by the drafters of the material in question, to confine it or otherwise make it readily comprehensible.  The extent of the material also renders it difficult for the court to deliver an ex tempore judgment.

16. If these reasons for judgment can be criticised, on the same grounds, as being unwieldy and impenetrable, such criticisms are, in my view, explicable because the court is called upon to respond to this large body of material produced because of the situation of extreme crisis and urgency arising in the life of this family, which the parties are unable to resolve consensually.

The Mother’s case

1. It is the mother’s case that the father is a violent person, who has significant prior convictions for violence and theft.  For his part, the father characterises these as offences of his youth, committed prior to the parties’ relationship.

2. During September 2013, the mother alleges that the father raped her, whilst threatening her with a knife.  The father allegedly photographed his actions.  Later that month, the mother alleges that she was subjected to a further episode, of extreme sexual denigration, after she refused to have sexual intercourse with the father. 

3. In addition, the mother alleges that the father has videotaped and photographed her, whilst showering or naked and has posted these images on pornographic websites with the intent of demeaning and controlling her.  For his part, the father categorically denies the allegations of rape or sexual assault.  He further denies putting any information, about Ms Kearns, on the internet.

4. After the parties separated, on 8 January 2014, the mother alleges that the father behaved in a violent way towards her, at the parties’ former family home, during a handover of the children.  The mother stated to the police that the father entered the house, against her instructions, before leaving with the children.  

5. When the father returned later and found the screen door locked, he kicked and damaged the door frame, once again entering the property, in the face of the mother’s obvious unwillingness to admit him.  As a consequence of this incident, a family violence order was granted by the Holden Hill Magistrate’s Court.

6. On 4 February 2014, there was a further incident between the parties, which resulted in the father being charged with breaching the family violence order.  It is the mother’s case that this charge arose because of an altercation between the parties outside of X’s school, when she collected the child. 

1. Thereafter the father followed her in his car and, when she stopped at the traffic lights, removed X from the car and went off with him, leaving Y behind.  It is her case that both children were extremely distressed by the incident.

2. It is the mother’s case that this incident exemplifies the father’s lack of respect for court orders and his propensity to take things into his own hands, if he does not get his own way.  In addition, in respect of the incident regarding the screen door, she asserts that this demonstrates that the father is a bully, who has no respect for her personal boundaries.

3. On 25 April 2014, the mother assets that the father once again came to her home and attempted to enter her property, after abusing her through the front door.  The police were called but the father left before their arrival.  The father was not charged in respect of the incident and he denies any wrong doing.  It is his case that he had organised a friend to collect the children and he remained in his vehicle, at all relevant times. 

4. The next incidence of violence, which resulted in the charges against the father, ultimately dealt with by the District Court, occurred on 7 July 2015, once again at the mother’s home.  She was present there, in the evening, with a friend, Mr R.  The children were in the care of the father at the time.  Mr Kearns arrived at the home, again uninvited, at about 10.00 pm.  The children were not with him.

5. He entered the property apparently looking for Mr R.  Again police were called.   Mr R fled the scene, being fearful of the father.  Before the arrival of the police, the father left the premises.  After the police interviewed Mr R, they too left.

6. Shortly afterwards, Mr Kearns returned to the property and parked his car in the drive way.  Thereafter, the father shut down the electricity to the house, causing it to fall into darkness.  Then he jumped a side fence and tried to enter the property again.  He threatened the mother with words to the effect that he would kill her and break her neck. 

7. The police were again called and the father was arrested.  Subsequently, given the understandably serious view taken of the incident, by the relevant authorities, the father was remanded in custody for seven days, before being released on home detention bail.  It was a condition of his bail that he wear a security bracelet.

8. It was a further condition that the father not communicate with the mother, through any means.  Following the incident of 15 July 2015, the mother asserts that the father contacted her via SMS message on numerous occasions.  She alleges that the father indicated that he had removed his security bracelet and did not care about any consequences.

9. I have been provided with copies of these messages, which indicated that the mother responded to some of them.  It is the father’s position that he was not charged with a further breach of the domestic violence order.  He denies intentionally removing the security bracelet, indicating that he had inadvertently damaged it.

10. On 31 May 2016, the father pleaded guilty, in the District Court, at Adelaide, to a charge of contravening a term of an intervention order and aggravated assault.  The assault was aggravated, as it was committed against the mother – a family member of her assailant.  The father was sentenced to eight months imprisonment, which was wholly suspended, upon the father entering a bond to be of good behaviour for two years.

11. In her sentencing remarks, Judge Tracy noted that the father had a history of offending dating back to his youth.  She also accepted that the father’s conduct was motivated by his concern arising from Mr R, who at the time was facing charges of sexual offences involving a minor, which were subsequently substantiated by court conviction.  Her Honour noted as follows:

    “It appears your fears were well founded in relation to your former wife’s new partner in that he was eventually sentenced to a term of imprisonment for sexual offences…. I note you have had your own history of having been a victim of sexual abuse.  You say that the thought of your children being in a position of danger caused you to lose control.  You say you now realise that you did not behave in the most appropriate way to address the issue.”

12. The mother also alleges that the father was financially controlling of her, both before and after the parties’ separation.  It is her position that Mr Kearns does not pay child support and has threatened to bankrupt himself, in order to frustrate her application for a property settlement.   She also complains that he has removed her motor vehicle from her and replaced it with an inferior one.

13. As previously indicated, it is also Ms Kearns’ case that the children are regularly exposed to their father’s negative view of her.  She asserts that they refer to her as a bad mother and a fucking bitch.  X has threatened to stab her, whilst Y is very clingy towards her mother.

14. It is the mother’s case that this disturbing behaviour has culminated with X indicating a wish to kill himself.  She asserts that this incident occurred on 10 August 2016, in the context of the child expressing that he had a sad life and his father hated him.  During the incident, the child is reported to have taken a knife from a kitchen drawer.  The matter was reported to the counsellor at X’s school.

15. The mother also alleges that, since the parties separated, the father has monitored her whereabouts, through her mobile phone use.  As such, she contends that he was aware when she was interstate recently.  In this context, she has deposed that her home was broken into, on 29 August 2016, by an intruder.

16. This person rummaged through her handbag and took some items of jewellery of significance to her and the children, but no items of intrinsic worth were stolen.  The wife is highly suspicious of the incident and the items which were stolen.  It is her view that the only person who can have committed the offence is the father and he has done so with the intent of intimidating her.

The Father’s case

1. The father acknowledges that there have been three specific instances of family violence between the parties, which have resulted in the involvement of the police.  However, it is his position that none of these incidents have involved him being “physically violent towards the wife”.  Rather, he categorised his behaviour as “verbal not physical”.  It is also his position that the mother has overstated the degree of involvement of the children, in each of the incidents concerned. 

2. As previously indicated, the father categorically denies ever having sexually assaulted the mother or having posted indecent images of her on the internet.  In addition, he denies any financial control of the mother.  He has not formally denied being involved in the burglary of 29 August 2016, which was raised by the mother in an affidavit recently filed, to which no response has been provided, due to time constraints.  However, through his counsel, he denies any responsibility for it.

3. Mr Kearns characterises the parties’ relationship as being a volatile one.  He alleges that it was the mother who, in fact, punched him on a number of occasions during their marriage.  As previously indicated, he also alleges that the mother has had issues to do with illicit drug use, which have had implications for her capacity to parent the children adequately.

4. The father acknowledges that he damaged the door frame of the parties’ former home in January 2014, which led to making of the relevant family violence order.  However, it is his position that, up until mid-2016, Ms Kearns regularly came to his home for the purpose of exchanging the children and he has come to her home, without incident.

5. It is also his position that parties have regularly exchanged communications with each other regarding arrangements for the children’s care, again without incident.  It is the implication of this evidence that he asserts that the mother has overstated her concerns, in order to gain tactical advantage in these proceedings.

6. In respect of the incident of 4 February 2014, the father alleges that there was an agreement between him and the mother for him to collect X, from school, in order to attend football training.  It is his position that the mother reneged on this agreement, which led to him removing the child from her care.  He acknowledges that this caused an argument but asserts that X himself was not affected by it.

7. In any event, regardless of the gravity of the incident, Mr Kearns deposes as follows:

   “This incident was more than two years ago and I have continued to see the children in accordance with the usual arrangements since that time.”

8. In respect of the incident, which led to his sentence in the District Court, the father asserts that he went to the mother’s home because of his concerns that Mr R had been charged with sexual offences against children and so potentially posed a risk to X and Y. 

9. It is his evidence that he was angry and distressed because of the possibility of the children being exposed to Mr R in future.  As previously indicated, this was a factor put forward, on his behalf, as a mitigating factor, before Judge Tracy.

10. Those acting for Ms Kearns have supplied 30 categories of documents to the court, which comprise a bundle some 2.5 centimetres thick.  A significant proportion of these documents comprise records from (omitted)’s, regarding X.  At this stage, no one from the school has been called upon to interpret those records and put them in context.

11. It is the father’s case that X has been exhibiting disturbing behaviour, for a significant period of time, certainly well before the alleged self-harm incident of 10 August 2016, which post-dated Ms Kearns’ application to the court.

12. It is the submission of Ms Cocks, counsel for the father, that the records available indicate that X’s behaviour has been concerning for a significant period of time and has involved violent behaviour towards other children.  In addition, she points to the fact that it is not possible for the court to place some of the child’s comments and behaviour in a proper context from the school notes alone. 

13. Finally, Ms Cocks points to the fact that the incident of 10 August 2016, which the mother has portrayed as involving a knife, is reported to the school as having involved a butter knife.  The implication being that this considerably reduces the potency of the child’s threat. 

The Issues

1. The central issue arising in the case can be easily stated, notwithstanding the voluminous extent of the material before the court.  The issue is thus:

   ·Are the issues, raised by the mother, about the father’s family violence, a large proportion of which are substantiated by evidence available to the court, of such gravity that protective concerns for the children should dictate that their time with their father be dramatically curtailed, at this stage, notwithstanding the uncontroverted evidence, that the children have spent significant periods of time, with him, in the period now approaching three years, since the parties separated.

2. Although the issue is easily encapsulated, it is not easy to resolve, at this interim stage.  On any view, the mother’s concerns are serious.  On the other hand, her proposal would represent a very significant change in arrangements for the care of the two children concerned.

The Legal Principles Applicable

1. The evidence, so far available to the court in this case, is confusing, contradictory and disturbing.  It is difficult, if not impossible, for the court to resolve issues of fact, at the interim stage.  Due to time constraints, the interim hearing takes place in a truncated form.  As such, there is no available time for cross examination.

2. More importantly, at this early stage, there has been insufficient time for there to have been prepared an independent and objective psychological assessment of the two children concerned, particularly the nature of their relationship with each of their parents.  Such a report is likely to be helpful in identifying the children’s views concerning future arrangements for their care and what factors are impacting upon those views. 

3. At this stage, the parties agree that it is imperative that a family report be prepared.  They agree that the compiler of the report should be an experienced psychologist.  The various experts proposed will not be available to complete the report in question until early 2017, at best.

4. The court is not in a position to defer its decision until the report is available.  From the father’s perspective, it is untenable that the situation which has prevented him engaging with the children for a period approaching two months should be perpetuated any longer.  From the mother’s perspective, there are significant protective concerns pertaining to the children. 

5. At the interim stage, the Full Court has pointed out that ordinarily, the court should not be drawn into issues of fact or matters relating to the merits of each parties substantive case.  Rather, it should look to what can be agreed between the parties and any less contentious matters.[3] 

   [3]  See Cowling v Cowling (1998) FLC 92-801

6. In this case, the parties agree that both of them have been significantly involved in parenting the children, in the period since their separation.  They also agree that there have been incidents of family violence between them, although they fundamentally disagree about the extent of that violence; its potency; and its implication for the psychological wellbeing of the children.  At this stage, I am not in a position to resolve much of the controversy arising between the parties.

7. Notwithstanding these evidentiary difficulties, the court must still make a decision and put in place the orders, which it considers will best regulate the situation, so far as X and Y are concerned, according to the relevant principles contained in the Act. 

8. In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

9. In Deiter & Deiter[4] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [4]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

10. In SS v AH[5] the Full Court said as follows, in respect of the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned.  This is the case in the current matter.  The Full Court said as follows:

    “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.”

    [5]  See SS v AH [2010] FamCAFC 13 at [100]

11. In Eaby & Speelman[6] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage.

    [6]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

12. With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of family violence to such orders.  It is to be noted that although the nature of the hearing is different, at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

13. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

14. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

15. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

16. There are two primary considerations, which are as follows:

    a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

17. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

18. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

19. Accordingly, one of the major emphases, in the Family Law Act, is on protecting children, who have been exposed to family violence in the past or who may be in the future.  It is a factor to be given priority, over other considerations, including the likely benefits of a child having a meaningful level of relationship with parents. 

20. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

21. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

22. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[7] 

    [7]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

23. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9] 

    [8]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [9]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

1. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

2. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

   ·an assault;

   ·a sexual assault or other sexually abusive behaviour;

   ·repeated derogatory taunts;

   ·intentionally damaging or destroying property; and

   ·the withholding of financial support.

3. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.  Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).

4. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

   ·overhearing threats;

   ·seeing or hearing an assault;

   ·stalking;

   ·comforting or providing assistance to a member of the child’s family, following an assault;

   ·cleaning up after property has been damaged; and

   ·being present when police attend an incident involving an assault.

5. In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.  Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[10]

   [10] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J

6. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

7. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

8. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

9. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

10. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

11. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

12. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·consider the section 60CC matters relevant;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø there are reasonable grounds to believe abuse or family violence has occurred;

    Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Conclusions

1. It is the father’s case that, in the difficult circumstances prevailing between the parties, from time to time, his conduct, if not excusable, is at least explicable.  It is his position that he has not been actually physically violent towards the mother.

2. This may be so, but in my estimation, his view of his behaviour represents a naïve and fundamental misunderstanding of the nature of family violence.  As previously indicated, it is behaviour which is intended to coerce another family member.

3. In my view, this is the gravamen of the mother’s concerns.  She points to the fact that Mr Kearns has disregarded family violence orders made against him; entered her home against her wishes; and caused her to be extremely frightened.  In her sentencing remarks, Judge Tracy noted the father’s serious disregard for the family violence order, made in the mother’s favour, which concerns I share.

4. The father is not in a position to deny that he has breached the family violence order placed upon him, in what I view as very serious circumstances.  It is not open to the father to take things into his own hands.  What he did must have been very frightening for the mother.

5. I am not in a position to make findings of fact regarding the very serious allegations of sexual assault made by the mother against the father.  If true, the instance represents a most serious humiliation and degradation of the mother.  A person who would attempt such behaviour, against the mother of his children, cannot be regarded as an appropriate role model for such children, particularly a male child, such as X.

6. However, notwithstanding the gravity of the mother’s concerns, it remains the case that the last incident of substantiated violence occurred in mid-2015.  In my view, it is a significant factor that, since this time and notwithstanding the fact the father has been awaiting trial in the District Court the mother has been ostensibly willing to facilitate time between the children and their father.

7. In respect of both the incidents, which occurred in January and February of 2014 respectively, it is clear that both children were exposed to this behaviour, in the sense envisaged by the applicable legislation.  It is the father’s case that the children were essentially unperturbed by the incidents.  It is also Mr Kearns’ case that he was responding to emotionally charged circumstances, which arose shortly after the parties separated.

8. It is also his case that it was understandable that a person of his background would react extremely, upon learning that his former partner was involved with a person with a history of sexual assault against minors, particularly if that history was subsequently borne out by a successful criminal prosecution.

9. Family violence is not homogeneous in its qualities and can arise in a variety of contexts.  It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children. 

10. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.  Obviously the latter behaviour is the more damaging so far as children are concerned.[11]  Not all incidents of family violence will be necessarily damaging for a child.

    [11]  See JG & BG (1994) 18 Fam LR 255 at 261

11. In this case, the mother would categorise the father’s behaviour as being systematic and controlling of her, over a protracted period of time.  On the other hand, the father would assert that he has behaved impulsively, when stressed. 

12. I am not in a position to resolve this issue definitively in the context of the current proceedings.  However, as the Full Court pointed out in Deiter & Deiter, notwithstanding any evidentiary difficulty, I must still attempt to assess the potential risk to the children of the father’s behaviour, particularly in terms of the degree of risk involved.

13. In assessing this risk, in my view, it is a significant factor that the mother does not allege that she has been subjected to any incidents of violence, since mid-2015 and since this time the children have spent regular periods of time with their father.  It is in this context that the mother’s allegations that the children have been subjected to psychological abuse, in the form of being exposed to taunts and denigration of her, by the father, must be examined. 

14. The mother’s case is that X, in particular, is at significant risk of self-harm because the father constantly abuses and denigrates her in his presence or hearing.  Her allegation is supported, to some extent, by the school records, albeit that the report is of a butter knife rather than some form of sharper implement. 

15. However, it should be noted that the allegation of self-harm has been reported by the mother to the school authorities, rather than vice versa.  In addition, there is significant support, for the father’s contention, that X’s behaviour has been of concern to the school for a considerable period of time, in a variety of contexts.

16. In my view, in the absence of a definitive family assessment report, I must be cautious in how I interpret this material, particularly in how I may attempt to attribute causation for it.  I accept however that X is a child, who is not currently travelling well emotionally and it would be naïve to think that the currently highly mistrustful relationship between the parties was not at least some factor in this.

17. If the father did break into the mother’s home, whilst knowing she was interstate and thereafter removed items, which he knew were of significance to the mother and the children, in the form of their christening jewellery, in my view, this would be family violence of a most serious character.

18. It would represent stalking.  Its most obvious motivation would be to frighten the mother.  As such, it is potentially a mechanism of control through intimidation.  From the mother’s perspective, it has heightened significance because it arose in the context of her pursuing her legal entitlements to seek orders, from the court, in respect of both property and children’s matters.

19. The matter has been reported to police.  As yet no offender has been apprehended by them.  In effect, the mother asserts that it is an affront to the credulity of the court for it to be accepted that there is no connection between the father and the incident, given the proximity of her filing these proceedings and the break-in.

20. The Full Court in Deiter & Deiter has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity for the individuals, particularly children, who will be potentially affected by it.

21. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  The proximity of the alleged break-in to the commencement of these emotionally charged proceedings is striking, as is the propensity of the father to act impulsively and outside the law, as is evidenced by the breach of restraining order proceedings.

22. However, I have reached the conclusion that to restrict the father time with the children to only professionally supervised time, on the basis of the contested break-in alone would be a disproportionate response to the risk in question, particularly given that the father has had regular periods of time with the children concerned, including overnight time, for a period of well over a year. 

23. The court must be careful when it is called upon to respond to incidents, which are based on the suspicions of one party alone, when those suspicions can conceivably be explained by coincidence, even an unlikely one.   It is not an incident of alleged violence where the parties concerned have conflicting views as to what happened.  Rather one party has a suspicion that the other has tried to threaten her, which the other party denies.

24. Although I am bound to give primacy to protective concerns, the legislature does not permit me to overlook the benefits, which are likely to derive to the children, from having a meaningful level of relationship with their father.  In my view, given the extended nature of the time the children have spent, with their father, in the period since separation, this is an important consideration.

25. The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings.  This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).

26. The question of beneficial relationships is not to be considered in a retrospective sense.  Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.  I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them. 

27. A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”. 

28. From the father’s perspective, the mother’s proposal for him to spend time with the children, will significantly curtail what has hitherto been a meaningful level of relationship with them.  He is concerned that it will be a minimum of a further six to eight weeks before the parties can be accepted into a children’s contact centre.  Thereafter, at best, he will be able to see the children for only two hours per fortnight. 

29. Necessarily, it is the father’s position that such an outcome will mean that the children do not benefit from what has previously been a very meaningful parental relationship for them.  He is concerned that, notwithstanding the best efforts of the staff concerned, they will not be able to facilitate an appropriate level of relationship in the institutional and restricted confines provided by a children’s contact centre.

30. I share his concerns that such a regime will impact significantly on the level of meaning, which X and Y have hitherto shared with him.  In particular, I am concerned that such a regime of sporadic professionally supervised time is disproportionate to the threat, which the father potentially poses to the children concerned, as identified by the mother. 

31. I reach these conclusions, when I consider the factors contained in section 60CC (3)(b) & (d) in particular.  It seems more probable than not that the children have a significant level of relationship with their father.  The mother was prepared to facilitate this relationship in the period immediately following the parties separation.  I am concerned that significant changes to this regime may have implications for the children, particularly if they are artificially separated, from their father, for an extended period of time.

32. In the current case, it is impossible for me to establish, on the balance of probabilities, why X has been acting out in the manner in which he has been doing.  In addition, at this stage, I am unable to fully appraise what risks may arise, for both X and Y, if their relationship with their father remains in a truncated form for the next six months or so. 

33. In all the circumstances of this case, there are reasonable grounds to lead me to believe that Mr Kearns has engaged in family violence. He has a conviction to this effect. In addition, in my view, it is also highly significant that he has been found to have disregarded a relevant family violence order [see section 60CC](3)(k)]. In these circumstances the presumption, arising under section 61DA is rebutted.

34. In any event, in my view, it is clearly inappropriate, given the poor and mistrustful relationship currently prevailing between the parties for the presumption to be applied.  Accordingly, it is not necessary for the Court to consider either an equal time or substantial and significant time regime.

35. However, notwithstanding the rebuttal of the presumption, arising under section 61DA, the court is still required to consider the outcome, which it considers would be in the best interests of X and Y, at the interim stage. In this context, both parties have significant criticisms of the others capacity to provide for the children’s emotional needs and their respective level of insight, into the responsibilities of being a parent [see section 60CC(3)(f)&(i)].

36. Again, I am unable to resolve these controversies, at this stage.  However, it seems more probable to me than otherwise that the parties have been significantly involved in the care of the two children and that, as a consequence, both children know and love each of their parents.  However, on balance, it seems more likely than not that the mother has provided more of the children’s day to day care than has the father.  This arises from his concession that, during the parties’ marriage, he worked long hours.

37. In my view, it is also highly significant that, notwithstanding the grave deficits in the parties’ capacity to communicate effectively with one another, they have been able to regularly exchange the children between them, including at the mother’s home, over a period now approaching three years.  In my view, this indicates at least some potential for the parties to continue to manage care arrangements for their children, independently of the need to involve a children’s contact centre.

38. In addition, at this stage, I am not in a position to dismiss the father’s view that the instigation of these proceedings is likely to have exacerbated the propensity of parties, in these highly adversarial proceedings, to adopt ambit positions in their respective cases.

39. I note this because the mother’s application contains a fall-back position, so far as interim arrangements for the children are concerned.  She proposes that there be time, between the father and the children, for specified periods not exceeding 48 hours each alternate weekend.  This proposal seems to have arisen in acknowledgement of the extended periods of time the children have hitherto spent with the children.

40. I am unclear how this would work, in practical terms, given that, for the proposal to be strictly applied, it would be necessary for the time to start at midnight on Friday and conclude at midnight on Sunday.  This cannot be what was intended.  A more logical proposal would be from the conclusion of school on Friday until sometime on the following Sunday, say 3.30 pm.

1. In my view, a major protective factor for both the mother and the children, to avoid them being exposed to any further incident of conflict between their parents, would be to put in place a regime whereby the children could be exchanged between their parents without the parents coming into contact with one another. 

2. The best place for this to occur would be at their school, which has been the practice until recently.  If adopted, in my view, this process would militate in favour of time from after school Friday until the commencement of school the following Monday, on alternate weekends, which is longer than forty eight hours.

3. In my view, it is preferable to extend the period rather than put in place a regime which the parties themselves must implement.  In addition, I am not in favour of the father’s proposal to divide each week, so that he always has the children on weekends.  In my estimation, such an outcome will exacerbate rather than diminish the current extreme level of tensions between the parties.

4. In addition, although I am not mandated to consider it, the parties’ hostility towards one another and resulting deficits in their capacity to communicate effectively render an equal time regime unworkable.  However, given the previous arrangements for the care of the children and the likely significance of their relationship with their father, it seems to me to be in X and Y’s best interests to spend reasonable significant periods of time with their father, pending further investigation.

5. For these reasons, I will make interim orders that will see the children spending alternate weekends, with their father, from after school on Friday until the commencement of school the following Monday commencing 21 October 2016, which is the first week of the final school term for the year.

6. Since separation, it is common ground that Mr Kearns has spent time with the children each Wednesday evening.  He has apparently returned the children to the mother at around 7.00 pm.  In these circumstances, I propose that in the other week of the school term, the children spend from after school on Wednesday until 7.00 pm with their father. 

7. This arrangement can commence on Wednesday 26 October 2016, with the father returning the children to the mother’s residence at its conclusion, provided he does not alight from his car, but rather sounds his arrival by sounding his car horn or something similar, so that the mother may be alerted to the arrival of the children and can open the door for them.

8. Mr Kearns has not engaged with the children for a significant period of time, given his previous level of involvement with them.  It is currently school holidays, I will direct that he spend time with them from 9.00 am on Friday 14 October until 4.30 pm on Saturday 15 October, provided he is able to take time off work.

9. Neither party has made any proposals whatsoever for school holidays or special occasions, particularly Christmas.  In these circumstances, I will direct that the children spend week about, with each of their parents, during the forthcoming end of year school holiday from 9.00 am Monday until 9.00 am the following Monday.  In the absence of agreement the father is to have the first, third and fifth week of the holiday.

10. This arrangement will have to be suspended for the period between 24 and 26 December.  I will direct that the children spend time with the mother between 12.00 pm on 24 December until 2.00 pm on 25 December; and with the father from 2.00 pm 25 December until 12.00 pm on 26 December, unless the parties are able to agree on an alternative agreement which is satisfactory to them.

11. I will direct that on all occasions that school is not available for handover, the children be exchanged between the parties at a location to be agreed between them and failing agreement to be the (omitted) Police Station.

12. In my view, another protective factor will be created for the mother, once the court has established clear parameters for the children’s involvement with each parent, on a provisional basis, and put in place arrangements to resolve the issues between the parents on a final basis.  This process will begin with the commissioning of a family report and the commencement of the conciliation process in respect of the property issues.

13. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         13 October 2016