Kilburn and Kilburn

[2020] FamCA 206

FAMILY COURT OF AUSTRALIA

KILBURN & KILBURN [2020] FamCA 206

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother seeks the children have only supervised time with the father – Where the mother asserts a risk of harm in the father’s care – Where the risk of harm is mitigated by his time being supervised by the paternal grandparents – Orders made.

Family Law Act 1975 (Cth) ss 4, 61DA

APPLICANT: Ms Kilburn

RESPONDENT: Mr Kilburn

FILE NUMBER: SYC 342 of 2020

DATE DELIVERED: 2 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lewis Holdway

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Karen L Haga & Associates

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the children X born … 2013 and Y born … 2015 live with the mother.

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

   (a)During school terms, on each alternate weekend, commencing on the first Friday after the making of these orders, from after school until 5pm on Sunday.

   (b)During school holiday periods, each weekend, from 3.00pm on Friday until 5.00pm on Sunday commencing on the first Friday immediately after the last day of term.

   (c)By FaceTime or Skype each Tuesday and Thursday at 6.00pm to be facilitated by the mother.

3. That in the event that the time the children spend with the father pursuant to Order 2 falls on the weekend of Mother’s Day, the children shall be returned to the care of the mother at 5.00pm on the Saturday before Mother’s Day.

4. That notwithstanding any other order, the children shall spend time with the father from 5.00pm on the day before Father’s Day until 5.00pm on Father’s Day.

5. That the time that the children spend with the father shall be under the general supervision of the paternal grandparents or either of them.

6. That the paternal grandparents, or either of them, shall collect the children from the mother’s home at the commencement of any period the children spend time with the father and return them to her home at the end of the time and the father shall not be present at changeovers.

7. That each party is restrained from denigrating the other, or discussing these proceedings, in the presence or hearing of the children.

8. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kilburn & Kilburn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 342 of 2020

Ms Kilburn

Applicant

And

Mr Kilburn

Respondent

REASONS FOR JUDGMENT

1. Ms Kilburn (“the mother”) and Mr Kilburn (“the father”) are the separated parents of two children, X aged six and Y aged four. The children live with their mother and have not spent time with their father since November 2019.

2. The parents separated in March 2019. The father left the house and lived with his parents.

3. The interim applications before the Court concern the sale of the former matrimonial home and the parenting arrangements for the children. At the commencement of the interim hearing, the parties advised that the property applications were not pursued.

4. The mother seeks orders that the children live primarily with her. She proposes that the children communicate with the father by FaceTime on Wednesdays and Fridays but she does not propose that they have any time physically with their father. It is the mother’s case that, subject to the course of the current pandemic, the father’s time with the children be supervised by a contact centre and that the time not commence until the father has completed a “Parenting After Separation” course, an “Anger Management” course and that he be psychiatrically assessed and complete any treatment proposed by the psychiatrist.

5. The father proposes that the parents have equal shared parental responsibility for the children, that they live with the mother and spend time with him on alternate weekends from Friday afternoon until Sunday evening and for half of all school holiday periods. He also seeks FaceTime or Skype contact. The father does not pursue his application for time with the children on Tuesdays.

6. The father’s parents have each filed affidavits in which they depose to their willingness to supervise or facilitate the father’s contact with the children.

7. The restrictive regime proposed in the mother’s case is predicated on her allegations of family violence.

8. On behalf of the mother, it is submitted that the father’s inability to control his aggressive outbursts and his history off becoming easily agitated when caring for the children demonstrate his inability to care for the children for a substantial period.

THE ALLEGATIONS OF FAMILY VIOLENCE

1. It is not in dispute that the father suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and receives treatment for ADHD from his general practitioner. There is no evidence, other than the assertions of the mother, that the father has any underlying psychiatric condition.

2. The mother asserts that, during the time they lived together, the father frequently broke things when he was agitated, that on one occasion he punched a wall close to her head and that, on one occasion, while the family was in the car, the father punched and broke the window.

3. The mother deposed that she ended the relationship in March 2019 after the father sent text messages to her while he was caring for the children and she was away from the home. In a text exchange about the children wetting their beds and the father not having the right “pullups” for them because they had run out, the father texted “Gonna fuckig [sic] murder these fucking shits”. The text exchange was intemperate on the part of the father but ended in an apology to the mother.

4. The mother deposed that, at the time of separation, the father said to her “If you take me to court over the kids, I’ll go postal” and that as a result she “was afraid for my safety”.

5. I do not accept, as was submitted by the solicitor for the mother, that the mother interpreted the text exchange as a genuine threat on the part of the father to kill the children.

6. Clearly she did not, because the parents agreed that the children would spend time with the father on three weekends out of every four, the father collecting the children from school or pre-school and returning them to the mother at church on Sunday. The children spent time with the father over the Easter period in 2019 and for half of the July 2019 school holidays.

7. The mother deposed that the children appeared anxious in the period leading up to their time with the father. The father deposed that the children were reluctant to leave him and return to their mother.

8. I accept that both of those allegations are likely to be true and that the behaviour of the children reflects their struggling to cope with a very recent separation of their parents.

9. The mother deposed that the children have returned from time with the father, telling her that their father said they should tell her that he is sorry and asking her to let the father move back into the home. In September 2019, X told the mother that it wasn’t fair that they spent more time with her than with their father. X said “He tells us it’s not fair that you get more time with us than he does and you don’t fix it.”

10. After time with the father in October 2019, Y told the mother that “Daddy was working hard to come back and Mummy needs to let him” and that he “would cry forever until I let Daddy come back”.

11. The mother deposed,

    I told the children that Mummy and Daddy would not live together again, and X became very angry and punched me in the chest calling me a liar. I did attempt to tell him that was the truth and he said “It is not, because Daddy says he is coming back”.

12. The mother deposed that “The children appeared to be quite distressed about the break-up of our marriage…”

13. Without the father’s consent or knowledge, the mother has enrolled the children with a play therapist, commencing on 28 January 2020.

14. Both parents depose to an incident at changeover after church on 17 November 2019.

15. The father deposed that the children did not want to return to their mother’s care and that he said to them “if you want more time, you have to talk to mummy”. The father deposed that there ensued a conversation, in the presence of the children, about their separation in which he admits his voice was raised but denies that he was shouting.

16. The mother deposed that the father was agitated and refused to allow the children to get out of his car to go with her; that he told her that he did not want to be near her and that, when she walked away, he followed her making remarks which could be heard by other members of the congregation. The mother deposed that there was a conversation about the breakdown of the marriage in the presence of the children and that X in particular became very distressed.

17. After this incident, the mother refused to allow the children to spend time with their father.

18. On 17 December 2019, an Apprehended Domestic Violence Order was made for the protection of the mother and the children until 21 December 2021. The father did not attend and did not defend the application.

19. It would appear to be conceded by the mother that the children love their father and that they miss him.

20. Whilst the father does not concede that his time with the children needs to be supervised, his parents each filed affidavit in which they expressed their willingness to facilitate contact between the children and their father.

21. The mother did not accept that the paternal grandparents were suitable to care for the children when they spent time with their father although the mother made no complaint about the paternal grandparents and their relationship and care of the children before separation.

22. To the contrary, in her affidavit the mother deposed, that she agreed to the father having overnight time with the children because,

    …I was aware that he was living with his parents and I felt some degree of comfort in the being present and able to monitor [the father’s] time with the children.

23. The father in his affidavit, deposed that the children were happy in his care and enjoyed their weekends with him. They enjoy spending time with their grandparents and their cousins.

24. The father, in his affidavit concedes much of the behaviour alleged by the wife and acknowledges that his behaviour was not appropriate. He expressed regret and deposed that he now takes his ADHD medication regularly.

25. The father commenced counselling with B Services immediately after separation and, as at February 2020, had attended 21 sessions of counselling.

26. He has completed a “Parenting After Separation” course and he has enrolled in a men’s behaviour change group with C Services but has been prevented from starting that course because of the current pandemic.

27. I accept that none of these actions derogate from the father’s previous behaviours but they give some comfort that he does, as he deposes, have some understanding of the effect of his behaviour on the children and on their mother.

28. I accept that the mother has valid concerns about the father’s ability, even after counselling, to modify his behaviour and his responses when he is agitated or frustrated and that it is appropriate, at this time, for there to be some other adult present when the children are with their father.

29. Both of the paternal grandparents have sworn affidavits in which they set out their understanding of the obligations of a supervisor. The children are accustomed to staying overnight in their grandparents’ home.

30. I accept that the grandparents are appropriate supervisors.

31. Most importantly, it is important that the children are not subjected to the tensions that occur when their parents are together which, on any version of the evidence, have caused the children distress.

32. I do not propose, at this time, to order that the children spend half of each holiday period with the father. School holidays are about to commence and the children have not spent time with their father since November 2019. Rather the orders will provide that the children spend each weekend with their father during school holiday periods and each alternate weekend during school terms.

33. To prevent the parents having any contact on changeovers, one of the paternal grandparents will collect the children from the mother and return them to her. The father is not required to attend changeovers. If he chooses to accompany one of the grandparents, he should remain in the motor vehicle parked in the street.

PARENTAL RESPONSIBILITY

1. Each of the parents currently has parental responsibility for the children.

2. There is no evidence that there is any decision which needs to be made for the children in the near future relating to a major long term issue as defined in section 4 of the Family Law Act 1975 (Cth) (“the Act”).

3. I am not satisfied that, on an interim basis, there are circumstances that rebut the presumption in section 61DA of the Act in favour of equal shared parental responsibility.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 April 2020.

Associate:

Date:  02/04/2020