Kearns and Kearns

[2014] FCCA 3033

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEARNS & KEARNS [2014] FCCA 3033

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – whether child should remain living with father – whether child’s time with either parent should be supervised – allegations of family violence – boy aged 13 years.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 67Q, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR KEARNS

Respondent: MS KEARNS

File Number: SYC 3082 of 2014

Judgment of: Judge Scarlett

Hearing date: 8 July 2014

Date of Last Submission: 8 July 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Counsel for the Applicant: Ms De Vere

Solicitors for the Applicant: Watts McCray Lawyers

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Cominos Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child X born (omitted) 2001.

2. The child X is to live with the father.

3. The child is to spend time with the Respondent mother as follows:

   (a)Each alternate weekend from 4:00 pm or immediately after school if on a school day on Friday until 9:00 am or the commencement of school on the following Monday commencing on Friday 19 December 2014 ;

   (b)From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day 2014.

4. For the purpose of changeover where the child goes from the care of one parent to the care of the other in accordance with these Orders if not on a school day the father is to deliver the child to the mother’s residence at the commencement of the time and the mother is to deliver the child to the father’s residence at the conclusion of the time.

5. The parties are restrained by injunction from entering or seeking to enter the residence of the other party.

6. The parties are restrained by injunction from criticising or denigrating the other party in the presence or hearing of the child.

7. The parties are restrained by injunction from using any form of physical discipline on the child.

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 SYDNEY

SYC 3082 of 2014

MR KEARNS

Applicant

And

MS KEARNS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of the parties’ 13 year old son X for interim parenting orders, providing that:

   a)An Independent Children’s Lawyer be appointed to represent the child’s interests under s.68L of the Family Law Act 1975 (Cth);

   b)The father should have sole parental responsibility for the child;

   c)The child should live with the father;

   d)The mother’s time with the child should be limited in duration and supervised by a mutually agreed supervisor;

   e)A variety of injunctive orders should be made against the mother;

   f)The father should keep the mother informed of major medical issues involving the child; and

   g)The child should continue to attend therapeutic counselling.

2. As well as filing an affidavit in support of his Application, the father has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in which he states that the child has suffered psychological harm from being subjected to family violence by his mother and his adult brother and has also been exposed to family violence by the mother and the brother.

3. The mother opposes the Application. She seeks orders that:

   a)She should have sole parental responsibility for the child;

   b)The child should live with her; and

   c)The father should spend time with the child for limited periods of time during the school term and for half of the school holidays.

4. She, too, has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence.

5. The mother also seeks orders for property settlement, dividing the matrimonial assets on the basis of 75% to her and 25% to the father. 

Background

1. The father was born on (omitted) 1963. He is now 51 years old.

2. The mother was born on (omitted) 1964. She is just on 50 years old.

3. The parties were married on (omitted) 1985.

4. There are three children of the marriage, two of whom are now adults:

   a)Y, now aged 26 years, was born on (omitted) 1988;

   b)Z, now aged 24 years, was born on (omitted) 1990; and

   c)X, now aged 13 years, was born on (omitted) 2001.

5. There were increasing arguments in the parties’ home in 2013. The child X was attending the school counsellor throughout this time.

6. In June 2013 the father and X travelled to (country omitted) for a holiday. The mother did not go.

7. In August 2013 the child’s school counsellor requested that the parties attend an interview and told them that the child had made disclosures about his home environment. The school made a notification to the Department of Family and Community Services in August, and again in November 2013.

8. On 13 December 2013 the father obtained a Final Apprehended Domestic Violence Order against his son Y at the Burwood Local Court. The order remained in force for 12 months.

9. A further notification was made to the Department of Family and Community Services about X being exposed to psychological harm due to family violence.

10. On or about 17 February 2014 the child X commenced seeing a counsellor called Ms C at (omitted) each Monday.

11. On 22 May 2014 the father commenced proceedings in this Court by filing an Application for parenting orders and supporting documents. The Application was returnable on 7 July 2014.

12. On 11 June 2014 the father left the matrimonial home, taking X with him. They both took up residence in the home of the father’s parents.

13. On 11 June 2014 Y moved out of the former matrimonial home.

14. On 12 June 2014 the mother filed a Response and an Application in a Case.

15. The father filed a Reply and a Financial Statement on 4 July 2014.

16. On 7 July 2014, the first return date of the Application, the parties were directed to attend a Child Dispute Conference with a Family Consultant. An order was made under s.68L of the Family Law Act 1975 that the interests of the child X should be separately represented by a lawyer and Legal Aid New South Wales was requested to assist in the appointment. The Application was adjourned until the following day for an interim hearing.

Evidence and Submissions

1. The father relied on the following documents:

   a)his affidavit of 2 June 2014;

   b)his affidavit of 4 July 2014;

   c)the affidavit of Mr A of 30 June 2014;

   d)the affidavit of Ms C (the father’s mother) of 3 July 2014; and

   e)the father’s Financial Statement of 4 July 2014.

2. The mother relied on the following affidavits:

   a)her affidavit of 11 June 2014;

   b)her affidavit of 12 June 2014;

   c)the affidavit of Y of 17 June 2014; and

   d)the affidavit of Ms M of 2 July 2014.

3. For the father, Ms De Vere of Counsel submitted that the father and X were residing with the child’s paternal grandparents. The mother’s time with the child should be supervised.

4. It was conceded that Y had moved out of the former matrimonial home. However, it was submitted that Y had created a significant amount of tension in the household, due to his gambling addiction, his cannabis use and other behaviour.

5. Ms Spain of Counsel, who appeared for the mother, submitted that the mother’s evidence that there had been fights between Y and his father. It is the mother’s belief that the father is seeking to exclude her from X’s life. It is significant that Y has now moved out of the former matrimonial home. The mother would provide an undertaking to the Court that X would not come into contact with Y. It is also the mother’s view that the father is seeking to influence X against her.

Orders Sought

1. In the father’s Outline of Case Document prepared by his Counsel, the father seeks interim orders to the effect that:

   a)the father is to have sole parental responsibility for the child;

   b)the child is to live with the father;

   c)unless otherwise agreed between the parties the child is to spend supervised time with the mother:

   i)from 2:00 pm to 4:00 pm on Saturday and 1:00 pm to 3:00 pm on Sunday on the weekend immediately following the making of these orders and each alternate weekend thereafter;

   ii)the mother’s time with the child shall be supervised by such person mutually agreed to between the parties and failing agreement and/or an agreed supervisor being unavailable, the mother’s time with the child shall occur at the closest available children’s contact service to the father’s home for two hours each alternate Sunday from 1:00 pm to 3:00 pm or at such other times as may be nominated by the children’s contact service.

   d)Where the above order applies:

   i)Each party shall contact the children’s contact service within seven days, arrange an intake assessment, attend the assessment, comply with all reasonable rules of the contact service and all reasonable requests and/or directions of staff of the contact service; and

   ii)The mother shall pay all fees associated with the attendance at the contact service for her supervised time with the child.

   e)The mother shall be restrained from:

   i)Attending at or in the vicinity of any school at which the child may from time attend, including (omitted) Grammar School[1];

   [1] Address not quoted

   ii)Removing or attempting to remove or and/or causing any other person to remove or attempting to remove the child from any school which the child may from time to time attend, including (omitted) Grammar School[2];

   [2] Address not quoted

   iii)Denigrating the father or members of the father’s family to the child or in the presence of the child and from allowing any other person to do so in the presence or hearing of the child;

   iv)Discussing these proceedings with the child or showing the child any document connected with these proceedings or permitting any other person to do so; or

   v)Bringing the child into contact with his brothers Y born (omitted) 1988 and Z born (omitted) 1990, unless such time is supervised by a supervisor agreed to between the parties and/or such time occurs at the contact service.

   f)The father shall keep the mother informed via email of any major medical issues involving the child, including any details relating to the child’s attendance upon a medical practitioner and any treatment prescribed;

   g)The father forthwith authorise the principal and staff of the school that the child attends from time to time to supply the mother with all reports, school photographs, school counsellor’s notes, memos, school newsletters or any other information in relation to the child that the mother may request from time to time from the school and the mother shall do all things necessary to meet all expenses in relation to obtaining same.

   h)Save in case of emergency or urgent situations, the parties shall communicate with each other in relation to the child by use of email and/or SMS text message.

   i)The parties shall exchange the nominated email addresses for such communication via their solicitors within seven (7) days of the date of this order.

   j)The parties (are to) do all acts and things necessary to cause the child to continue to attend therapeutic counselling with Ms C of (omitted) or an appropriately qualified counsellor or psychologist nominated by Ms C (collectively referred to as “the therapeutic counsellor”);

   k)In order to give effect to give effect to the above order the parties shall do all things and acts necessary to comply with any reasonable request by the therapeutic counsellor, including causing the child, with or without the mother and/or father, to attend upon the therapeutic counsellor from time to time as may be determined by the therapeutic counsellor.

   l)For the purposes of the counselling with the therapeutic counsellor, the therapeutic counsellor shall be entitled to:

   i)Receive any report prepared and published pursuant to Court orders in this proceeding, if any;

   ii)All information from the child’s respective school and shall be at liberty to communicate with any treating medical or therapeutic professionals upon whom the child has attended or shall attend from time to time; and

   iii)Each party shall do all acts and things necessary to give effect to this order.

   m)That the costs of the therapeutic counsellor in relation to the counselling pursuant to the earlier order shall be paid equally by the mother and father as and when the costs fall due;

   n)That the mother pay the father’s costs of and incidental to this application.

2. In his Reply, the father sought orders dismissing the mother’s interim orders sought in her Response. He also sought orders for disclosure in respect of the mother’s property application.

3. These interim orders were not pressed.

4. The mother sought interim orders as set out in:

   a)her Response; and

   b)her Application in a Case.

5. In her Response, the mother sought orders that:

   a)the Respondent Mother have sole parental responsibility for the child of the marriage, X, born on (omitted) 2001 (“the child”);

   b)the child live with the Respondent Mother;

   c)the child spends the following time with the Applicant Father:

   i)every Wednesday after school or 3:00 pm until 6:00 pm;

   ii)every Saturday from 9:00 am until midday;

   d)both parties be restrained from physically disciplining the child.

6. The mother also sought an order for exclusive occupation of the former matrimonial home and an order for spousal maintenance, but those orders were not pressed.

7. The mother also sought these orders:

   a) That both parties shall be restrained from discussing these proceedings with the child or showing the child any document connected with these proceedings or permitting any other person from doing so.

   b) That both parties shall be restrained from denigrating the other or the other party’s family in the presence and/or hearing range of the child.

   c) That for the purposes of Order 3(a) and (b)[3] the child shall be collected by the father from school and shall be delivered to the mother’s residence at the conclusion of his time with the child.

   d) That the Applicant Father pay the Respondent Mother’s costs of and incidental to this Application.

   [3] The mother’s proposed Orders 3(a) and (b) provided that the father would spend time with the child every Wednesday and Saturday

8. In her Application in a Case, the mother seeks orders that:

   a)The child X should live with her;

   b)The father should forthwith return the child to the mother;

   c)In the event that the child is not returned, a Recovery Order should issue under s.67Q of the Family Law Act;

   d)That the father be prohibited from again removing or taking possession of the child; and

   e)That the father be restrained from removing the child from Australia and the child’s name be placed on the Airport Watch List[4].

   [4] Now known as the Family Law Watch List

Agreed or uncontested relevant facts

1. The father and the child X moved out of the former matrimonial home on 11 June 2014.

2. The parties’ adult child Y moved out of the former matrimonial home on 11 June 2014.

3. The mother has seen the child X on two occasions since he and the father left the matrimonial home, on 22 and 28 June 2014.

The Child Dispute Conference Memorandum to Court

1. The parties attended a Child Dispute Conference with a Family Consultant on 7 July 2014. The Family Consultant set out the issues between the parties in the Child Dispute Conference Memorandum to Court, dated that same day.

2. The Memorandum says this about family safety factors:

   Both parents allege long term family violence but identify the other as the primary perpetrator:

   The mother alleges coercive and controlling violence by the father, which included the father being physically and verbally abusive towards her.  She alleges X witnessed the father’s abusive treatment of her.

   The father alleges the mother was verbally and emotionally abusive towards him and has pushed him and spat at him.

   Both parents report being scared of the other parent and holding concerns for their physical safety as a result of the other parent’s behaviour (The father indicated his concerns are assuaged if in a public place).

   There is a current AVO issued against the parents’ eldest son, Y that names the father as the protected person.

   Each parent alleges various child protection and safety issues for X whilst in the other parent’s care:

   The father’s concerns relate to: prior violence towards X by the mother; poor general care; psychological and emotional abuse which includes the mother denigrating him to X and her not showing X any love or affection; that the mother will attempt to “lure” X back into her care against X’s wishes; that the mother prioritises her own needs, and the needs of Y and Z, above X’s needs; in the mother’s house X is exposed to Y and Z’s violent and aggressive behaviour and Y’s gambling. The father also asserts the mother is financially motivated in this despite (sic)[5] and that she does not love X and historically has shown little interest in him.

   The mother’s concerns relate to: X being exposed to family violence perpetrated on her by the father; the father denigrating her to X; the father and paternal family consciously manipulating the wishes of X so as to distance him from her and his brothers and destroy these relationships.

   [5] Dispute?

   Mother’s allegations that the father has undiagnosed mental health issues.

   Whether X’s older brother, Y, has a gambling problem, and the possible impact of this, if any, on X.

3. The Family Consultant made these comments about the issues relating to the child:

   X has not spent any significant time with his mother since the father took X and departed the family home in (omitted) on 10 or 11 June.

   Both parents assert that X is fearful of the other parent and/or his brothers.

   The father reports that X’s school has observed changes in X’s behaviour and a decline in his academic achievement. The mother reports that X’s most recent school report was “fantastic” and that the school has not raised any such concerns with her.

   From both parents’ account it appears that X has been exposed to a highly dysfunctional parenting relationship and home environment for a significant period of time, which has left X feeling anxious and which has negatively impacted on his emotional development. Both parents seem to agree that X requires ongoing counselling. They disagree as to who might be an appropriate counsellor/therapist.

   Both parents seem to agree that X is seriously affected by the family dynamics. In this situation, X’s safety, both physical and emotional, is paramount and this, rather than his expressed views, should determine the outcome of where he lives and how much time he spends with the other parent.

   Consideration as to where, and with whom, X lives would need to be made with reference to information supplied by Family and Community Services, NSW Police and relevant information relating to current mental and or medical health of X and of either of the parents.

4. The Family Consultant saw these issues as impeding resolution:

   Unresolved allegations of family violence

   Both parents seem to be of the opinion that their relationship is characterised by poor and ineffective communication, high conflict, (alleged) violence and lack of trust which each sees as placing significant stress on X. Each blames the other.

   The parents’ perceptions and views appear strongly polarised. They each present as an advocate in their own cause which they each are thoroughly convinced is consistent with X’s best interests.

   Possibly conflict arising from the involvement of other persons such as Y and Z or other extended family members.

1. The Family Consultant suggested that the Court may be assisted by obtaining further information from the NSW Police, Family and Community Services, and medical or health professionals previously or currently involved with X.

The relevant law in regard to applications for parenting orders

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to the sections of the Family Law Act 1975 found in Part VII. In particular, the Court should have regard to:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, where relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed in more detail.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[6] has held that a Court of first instance should consider the matters in s.60CC that are relevant and, if possible, make findings about them. However, their Honours noted that:

   …in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[7]

   [6] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [7] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]; FLC 93-286 at 80,903 [82]

2. This, in my view, is just such a case. The parties’ evidence differs on almost all of the relevant issues. As the Family Consultant said in the Child Dispute Conference Memorandum:

   The parents’ perceptions and views appear strongly polarised.[8]

   [8] Child Dispute Conference Memorandum to Court 7.7.2014 at page 3.

3. The evidence about the primary considerations in s.60CC(2) is vastly different. The father deposes that there is little in the way of benefit to the child X in having a meaningful relationship with his mother, saying:

   I have been primarily responsible for X’s day to day care as a result…I am concerned that if X was in Ms Kearns’ sole care his physical and emotional needs would not be met.

   I am most concerned that Ms Kearns will not act in X’s best interests and will not protect X from his brother’s[9] aggressive and hostile behaviour.

   I am seeking that Ms Kearns spend only supervised time with X in the interim given my significant concern that she cannot prioritise X’s wellbeing over her own or intervene to protect X from Y and his behaviour.[10]

   [9] i.e. Y

   [10] Affidavit of  Mr Kearns 2.6.2014 at paragraphs [16](k), (l) and (m)

4. The paternal grandmother, Ms C, deposes in her affidavit that her son has a close relationship with X but the child has made critical remarks about his mother to her. These remarks are to the effect that his mother does not help him with his homework and she sometimes screams at him. She also deposed that the child told her on a date in 2013 that his mother had smacked him, causing a scratch on his face.[11]

   [11] Affidavit of Ms Kearns 3.7.2014 at [13] and [15]

5. Mr A, a friend of the father, deposed in his affidavit that:

   I have observed over time that X and his father, Mr Kearns, share a close and loving relationship and interact well together. Mr Kearns appears to have normal; father son relationship with X and by that I mean, they appear close and Mr Kearns often talks about the activities that he and X do together, such (as) (omitted) dancing, attending Church together and homework tasks and the like.[12]

   [12] Affidavit of Mr A 30.6.2014 at [23]

6. By contrast, the mother claims that she has a “very close, loving and supportive relationship” with all three of her sons and has always made them her priority. However, she deposes that the father has controlled the time that she has spent with X and not let her be involved with the child’s homework or weekend sports. She also claims that she was not permitted to travel on holidays to (country omitted) with the father and X.[13]

   [13] Affidavit of Ms Kearns 11.6.2014 at [5](a)-(d).

7. The Court is required by subsection 60CC(2) at paragraph (b) to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Subsection 60CC(2A) provides that the Court is to give greater weight to the considerations set out in paragraph (2)(b).

8. Each parent accuses the other of being responsible for family violence or exposing the child to family violence. The father places a lot of the blame on the parties’ eldest son Y, who appears to have had a significant gambling problem. The father deposes that:

   My eldest son, Y has been exhibiting violent and aggressive behaviour at home for at least the last two years and in particular since I ceased assisting him financially in or about mid 2012. Y’s aggression is largely directed toward me and, at times, Ms Kearns and X also.[14]

   [14] Affidavit of Mr Kearns 2.6.2014 at [16]

9. The father also deposes that, at times, the parties’ second son, Z, has also become involved in abusive and violent behaviour towards the father.

10. The father also claims that Y has abused X, saying to him such things as “You’re a crawler”, “You’re a little shit”, and “I do not want to know you as my brother”.[15]

    [15] Affidavit of  Mr Kearns 2.6.2014 at [16](c)

11. The father deposes that, at times, Z has joined in this abuse, and will regularly swear at X and call him similar names.

12. The father claims that the mother has also called X names, saying to him on or about 3 March 2014:

    “You’re a trouble maker and a dobber. Keep your mouth shut and don’t tell what we do.”[16]

    [16] Ibid at [16](d)

13. The father has also deposed that the relationship between Y and himself began to deteriorate about two years ago:

    Since mid to late December 2012, the situation with Y’s gambling had been growing in intensity and his aggression towards me began to build from in or about that time. Whenever I would ask Y about his gambling debts, he would react in a very angry, and at times, threatening way towards me…

    Y has on multiple occasions verbally abused me and acted in an intimidating way towards me at the family home. By this I mean, Y has stood in front of me nose to nose, pointed at my chest and leant over me whilst yelling at me in a rage and this has occurred often in the presence of X….I admit that I have lost my temper with the situation at home from time to time also and have said things to Ms Kearns, Y and Z that I regret also.[17]

    [17] Ibid at [31]

14. However, the father went on to depose that:

    When Y has been away from the house for periods, it has been peaceful and there has been a sense of normality at those times.[18]

    [18] Ibid at [36

15. The father obtained a Final Apprehended Violence Order against Y on 13 December 2013, in force for one year.

16. The father also stated in his later affidavit of 4 July 2014 that he had attended the (omitted) Police Station on 22 April 2014 regarding an incident involving Y, and a police officer told him that he should get X out of the house.[19] 

    [19] Affidavit of Mr Kearns 4.7.2014 at [11]

17. The father deposed that on 10 June 2014 he attended the (omitted) Police Station on 10 June 2014 to discuss an incident that had occurred with Y two days earlier. He asked one Sergeant (omitted) to accompany him to the matrimonial home and warn Y about the terms of the Apprehended Violence Order. He went to say that when they arrived at the home both the mother and Y starred yelling at him. He moved out on 11 June 2014 with X and commenced living at his parents’ home.

18. Mr A, in his affidavit of 30 June 2014, described an incident at the father’s home on 7 February 2013 where Y, having arrived home, began shouting angrily at his father and telling him to move out of the house. Mr A deposed:

    I was afraid for both myself and Mr Kearns, as I perceived Y to be in a rage. His face was very red, he was shouting and his eyes were bulging. I was particularly concerned for the safety and wellbeing of Mr Kearns’s youngest son, X, who was present at the time…I observed X, who was about eleven years old at the time, to be extremely fearful of Y. By this I mean, X was in the corner of the room, watching Y, and was pale, and looked upset and withdrawn.[20]

    [20] Affidavit of Mr A 30.6.2014 at [8]

19. The mother gives a completely different account in her affidavit material, claiming that the father has been responsible for the domestic violence in the household, particularly:

    (i)     That X is suffering some kind of emotional trauma because of the domestic violence instigated by Mr Kearns that he has witnessed, and is particularly frightened of the police being called to the home.

    (ii)     Mr Kearns regularly threatens to call the police and when X hears this he says words to the effect: “No Dad, don’t call the police”. X has also pulled out the telephone landline to stop Mr Kearns from calling the police and Mr Kearns responded by saying “I’ve got a mobile, I’ll use that instead.”[21]

    [21] Affidavit of Ms Kearns 11.6.2014 at [5](i)(i)-(ii)

20. Rather than abusing X, the mother states in her affidavit that Y and Z have sided with their brother against their father, saying:

    I say that the elder boys protect X from the abuse of his father and say words such as “Don’t listen to Dad when he’s rude to Mum, that’s not nice”. The older boys also protect me from the verbal and physical abuse from Mr Kearns.[22]

    [22] Ibid at [5](i)(viii)

21. Y himself has deposed to an affidavit in which he gives a very account of his relationship with his father, who he claims behaved in a very controlling and abusive manner, including:

    7.  There have been many times when I witnessed the applicant screaming at my mother and this was often over petty reasons. Since I was about the age of 18 years, I have heard the applicant call my mother the following names “bitch”, “slut”, “dirty woman”.

    8.  The applicant would often refer to me not by name but by calling me “gambler” “thief”, “you are worthless”.[23]

    [23] Affidavit of Y 17.6.2014 at [7]-[8]

22. Y went on to depose:

    11.    I have also witnessed the applicant physically hit my mother when she was in a semi-unconscious state with her low blood sugar level due to her diabetes.[24]

    [24] Ibid at [11]

23. He further stated:

    13.    I say that the applicant has abused me and controlled me in all areas of my life, socially, financially, emotionally and physically.[25]

    [25] Ibid at [13]

24. As to the Apprehended Violence Order, Y stated that during the incident between his father and himself he called the police on 000 because he felt threatened. When the police arrived they wrote down the father’s version of the incident. He deposed at paragraph [17 of his affidavit:

    At this time, I discussed the AVO and defending it with my solicitor but since I did not want and do not want a relationship with the applicant I agreed to the AVO being made.

    18.   I returned home living with my mother and my brothers and only did so to protect my mother and brothers from the applicant’s controlling and abusive behaviour.[26]

    [26] Affidavit of Y 17.6. 2014 at [17]-[18]

25. Y denied that he had ever been violent or threatened the father and said that he had been frightened of him because of the way that the father controlled him for many years.

26. The parties’ evidence is poles apart and, without the ability to test the evidence, it is virtually impossible to make many conclusive findings of fact. What does appear is that the parties’ family relationship has been dysfunctional for a number of years, for whatever reason, and this has had a detrimental effect on X.

27. The orders that the father seeks are draconian and, in my view, not necessarily warranted. Even taking the father’s evidence at its highest, there is insufficient evidence of an unacceptable risk to the safety of the child that would warrant an order that the mother should only spend time with the child under supervision.

28. Whatever the true picture about Y and his relationship with X may be, it appears to be a fact that Y has now moved out of the former matrimonial home. It is the father’s own evidence that when Y was not in the home, it was peaceful and there was a sense of normality about the house. As it is the evidence of both parties that the other brother, Z, was and still is living in the former matrimonial home, the peaceful atmosphere when Y was not there took place even in the presence of Z. It is a reasonable inference that Z was not the instigator of violence or abuse directed at the father or X.

29. In the circumstances, there does not appear to be sufficient evidence to justify an order restraining the mother from bringing the child X into contact with his brother Z unless there is an agreed supervisor present. 

Equal shared parental responsibility or sole parental responsibility?

1. The evidence is inconclusive either way. I am not persuaded that, at this early stage, it is in the child’s best interests that either parent should have sole parental responsibility for the child.

Section 65DAA of the Family Law Act

1. Where the Court makes an order that the parties should have equal shared parental responsibility for a child, the Court is required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. In my view, the history of the parties’ dysfunctional relationship and the current conflict between them would not render such an arrangement reasonably practicable.

2. I am conscious that s.65DAA(5) provides that the Court must have regard to a number of considerations when determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents. It appears clear that the parties currently do not currently have the capacity to meet the requirements of paragraphs (b) and (c), which provide:

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.

3. That Court must also consider, under s.65DAA(2) whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent. Again, it is doubtful that such an arrangement would be reasonably practicable, for the same reasons.

Orders that are in the child’s best interests

1. I am not satisfied, due to the conflicted nature of the parties’ evidence, that it is in this child’s best interests for him to be returned to the care of his mother at this stage, and I do not propose to issue a Recovery Order. For the time being, until the Court has some more independent information, he should remain living with his father. An order has been made for the appointment of an Independent Children’s Lawyer, who will no doubt be able to offer a valuable insight.

2. It will also be of benefit, in my view, if there can be a child-inclusive child dispute conference.

3. The mother has seen very little of X since the parties separated, and there should be an arrangement so that she can commence spending time with him. I do not see why there should not be overnight time, without the need for supervision. There should also be some time spent over Christmas, to bring back a degree of normalcy into this child’s life. I do not propose to order that child should not be brought into contact with his brother Z, who apparently still lives in the former matrimonial home, and I see no need for a supervision order in that regard.

4. It is significant that Y has moved out of the former matrimonial home.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  8 January 2015