Kinsealy and Arthur

[2009] FamCA 117

FAMILY COURT OF AUSTRALIA

KINSEALY & ARTHUR [2009] FamCA 117

FAMILY LAW – CHILDREN – With whom a child spends time  

Family Law Act 1975 (Cth)

APPLICANT: Mr Kinsealy

RESPONDENT: Ms Arthur

FILE NUMBER: SYF 2330 of 2005

DATE DELIVERED: 4 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 4 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Clinch Long Letherbarrow

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 17 March 2009.

2. Until 6:00 pm on 17 March 2009 unless the parties agree to the contrary in writing, the orders made on 14 February 2008 insofar as they deal with the father spending time with the child … born … April 2004 be suspended.

3. That if practicable the father spend time with that child until 6:00 pm on the adjourned date, each weekend from the conclusion of school Friday to the commencement of school Monday provided that each night the child spends in premises also occupied by the paternal grandparents or either of them,

4. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child … born … April 2004.

5. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.

6. The solicitor for the father advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

7. Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

8. That the mother facilitate the attendance upon her representative of the child at times, dates and places requested by the representative.

9. That the mother file a Response to the Application for Final Orders, any Response to the Application in a Case and all affidavits in proper form on which she seeks to rely not later than 27 February 2009.

10. That the parties attend a Child Dispute Conference by arrangement with the Manager Child Dispute Services AND THE COURT REQUESTED that the parties have separate interviews.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF2330 OF 2005

MR KINSEALY

Applicant

And

MS ARTHUR

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, born in April 2004.  So she is four and a half.  The father is 40 years of age and the mother is 33.  They started to live together in May of 2003, married in November 2004, separated on 1 February 2005 and were divorced June 2006. 

2. The mother has re-partnered with Mr B.  He is 34 years of age and they have a child, E, who is about eight months. 

3. Some orders were made in terms agreed between the parties on 14 February 2008 which provided for a shared care arrangement in 2008, Friday from 5 o'clock until Monday at 9 o'clock with the father collecting the child from Day Care at the start and returning her there at the end of each period. Under the orders in 2009 the child was to live with the mother and father week about, changing over after school on Friday. The child would be delivered to school by one parent on Friday and collected by the other. The orders also made provision for blocks of time, the child's birthday and the parents' birthdays.  The provision there was for the child to spend the nearest Sunday with that parent, nine to five. 

4. The orders also made provision in relation to medical treatment.  The parties had agreed to negotiate about a medical practitioner half-way between the houses.  They were going to communicate milestones, medical issues, special events and that would be done in a communication book. As to handover if the school or pre-school was not available then that would occur at M Police Station and if not then at a police station equidistant from their homes.  If the mother could not attend at changeover then her partner was to attend. 

5. The matters come before the Court because the father has filed an application on 22 January 2009 seeking that a location order as to the mother's address be provided by the New South Wales Police then a recovery order. The reason for that application was that the mother had stopped the father's time with the child. The father says that in December the parties were negotiating about block periods of time.  He and his father attended at V Police Station on Christmas Day to collect the child. At midday, Mr B and the mother's sister arrived at the police station and the child went to the father.  He picked her up and held her. 

6. The father says:

   "[Mr B] approached me.  He had a piece of paper in his hand.  He said to me: "Here take this", handing me the piece of paper.  I said to [Mr B]:  "No, I'm not taking it."  [Mr B] then grabbed my arm and attempted to put the paper in my pocket.  He said:  "Here, take it."  To which I replied:  "Let go of me [Mr B], I'm not taking anything from you."  [The child] became frightened and began to cry.  [Mr B] let go of my arm.  I attempted to leave the police station and [Mr B] stood in my way.  The officer manning the front desk, namely Officer [H] then intervened and said to [Mr B]:  "Hey, give me the paper and I'll hand it over."  As we were walking out I observed [Mr B] standing in front of [Mr J] blocking the exit from the police station and [Mr J] said to [Mr B]:  "If you attempt to hinder my free exit from these premises it may constitute an event of assault.  Please stand aside."  [Mr B] moved out of the way and we proceeded to leave.  Officer [H] followed and handed the paper to me which was a note from [the mother].  This is not the first occasion [Mr B] has interfered with me." 

7. The father was rung by Constable L.  She had left a message on his phone to contact him.  He rang back.  She said that Mr B had shown her order 14 of the orders.  There was a misunderstanding about a drop-off.  Constable said:

   "[The mother] has provided us with your home address and asked us to recover [the child] from you.  I was told that you have little contact with [the child]."

   The Constable later said: 

   "We have been requested to perform a welfare check."

   The father said:  "That's fine". He said he was not in Sydney and he'd drop the child into F Police Station the next day.

8. He did that. On 2nd January the child was handed over by the father to Mr B.  They did not say anything to each other, thank goodness. The father expected the child to come to him on the 9th.  There had been an attempt at communication through the solicitors.  The message was coming.  There was a discussion initially between the parties by text message about whether this was the start of the mother's period or this was the start of the father's period.  The child was not delivered. Then the father caused the police to check on the child in the mother's care.  That has happened. I gather that since then, the child has not been returned to the father. 

9. In the meantime an application has been made on the mother's behalf for an apprehended violence order and the matter was listed on 3 February at the Local Court. The application says that the person who needed protection and the defendant were married for about 12 months and divorced in 2005.  They produced one child together.  The child is now four and a half years of age.  The person who needed protection is currently engaged to the second person in protection, Mr B.  They produced another child who is six months old.  

10. The application asserts that there is an extensive history of stalking and intimidation by the father. It asserts that over a two year period the father has frequently been seen in the vicinity of the mother's unit block.  On one occasion the father was seen to follow the mother and Mr B home in his vehicle and watched them as they entered their unit block.  In relation to intimidation; there is reference to several harassing phone calls and message bank messages from the defendant to the person who needed protection.  In addition, there is evidence of the father using the child to manipulate and intimidate the mother and Mr B.  There have been two verbal altercations where the father has stated to the mother and Mr B:  "I'm coming to get you.  I'm coming for you.  Watch your back."  The application notes that the mother and the father have current Family Law Court custody arrangements whereby they meet at a designated place to exchange the child.  During the meetings numerous instances of verbal altercation have taken place.  There are current Family Law Court agreements stipulating custody changeover arrangements.  Both the mother and the father the defendant are agreeable to these orders. 

11. The most recent incident occurred on Monday 12 January 2009, the mother and Mr B entered L Police Station to make a report of several instances which have occurred involving verbal taunts, harassing phone calls and threatening gestures the mother’s ex husband, Mr Kinsealy.  These threats include verbal taunts where Mr Kinsealy has said: "I'm going to kill you."  And, "I'm coming for you."  These threats have made the mother to genuinely fear for her safety.  She told the police that she had not been able to leave her house without being in the company of her fiancé due to her apprehension. 

12. On Sunday 28 December 2008 at 6.04 pm the mother received a voice message from the father stating:  "I will go the whole nine yards and I will drag you through the media for the rest of your life.  Your father, your sister, the mother and [Mr B]." 

13. Over the past month the mother has observed the father outside her home.  During these encounters he's been hiding himself behind trees and upon seeing the mother, performed a throat slicing action with his hand.  He bought either his left or right hand up to his throat, looked straight at the mother, moved his hand in a cutting motion across his neck and then pointed to her.  He has also made numerous verbal threats and taunts against the two persons in need of protection.  Several weeks ago while Mr B and the two children were shopping, he approached them and stated:  "I'm coming for you.  Watch your back."  The mother fears for the safety of herself and her family.  She states that the father's unstable, may increasingly stalk their families.  Her fiancé is fearful to leave to go to work because he feels the father may try to attack him.

14. Murphy's Law applied and the application in a case was allocated 3 February and the AVO was allocated the 3 February. The father decided to have representation in the Local Court and come here and the mother decided to go to the Local Court and not have representation here. 

15. Thus, rather than there being any exploration of the matters in issue, the Local Court matter has been adjourned to a date in March. 

16. And so we come to today and the father says there is a series of flimsy allegations and the Court orders put in place by agreement should be immediately enforced. It is submitted that it would be detrimental to the best interests of the child, an offence to the father's rights as a parent and obviously a failure to enforce the orders if anything else is done.  He points to the fact that the mother does not have evidence in any proper form that provides substantive support to any of the things she says beyond some brief - some of hearsay evidence - from herself and her partner and then members of her family.

17. The submission made on behalf of the father is that similar allegations have been made in the past and notwithstanding those allegations, the mother asked the Court to make the orders on 14  February 2008.  Finally, it is submitted that it is no coincidence that all these things blew up at about the time when the parties' agreement for a week about arrangement was about to come into force. 

18. From the mother's point of view; she says she agreed to the orders on 14 February 2008 when she was not represented and did not think they were a good idea then, let alone now.  The father has always been aggressive, intimidating and there have been features of that over time.  His behaviour escalated over the latter part of 2008.  She did not have enough time to prepare any evidence because she was concerned about and distracted by, the events, leading to the application for orders in the Local Court. She wanted to get the apprehended violence proceedings under way. She says she has other evidence available. The mother says she has proofs of evidence from a number of people. They are largely hearsay records by people that are allied to her. Much of that material is not in admissible form in any event, even in relation to those small sections that are not her friends or relatives observing that she was upset.

19. So as a general proposition – and this is not unusual in interim proceedings, those third party affidavits or proofs of evidence are not any use. 

20. I am to make orders in the best interests of a child.  If we were talking about sharing the use of a motor vehicle then I would make the orders that Mr Campton is pressing on me today. 

21. The mother has not acted in a timely way.  She has been satisfied in herself that it would be appropriate to be in breach of Court orders and yet she has done nothing about bringing the matter to Court. In those circumstances she cannot then complain that she has no notice or no adequate notice of the proceedings when the father was put to bringing the proceedings to Court himself. He was not to know why the matter should be in Court.  The person who has decided to step outside the terms of the Court order has not brought the matter back to Court and the problem is highlighted, as Mr Campton alluded, by the mother's application.  One of the orders she wants is that:

    "Both parents agree to abide by all Court orders at all times and agree to take no further legal action against each other."

22. If I granted that order by consent now then the child would go back to the father.  I am not permitted to take any sort of risks with a young child just because her parents do not act in a timely way or are not rational. 

23. The father corroborates that there have been occasions when the child has been upset by aggression that has been demonstrated at handover.  On the occasion that he describes, on the face of it, he contributed to the problem.  The simple expedient of taking the piece of paper from Mr B would have presumably meant that the child would not have become frightened and began to cry on the occasion the father described.  Now, there might be a fabulous reason for that that I am not aware of. I cannot imagine what it would be. 

24. Now, the parties do not enjoy a good relationship.   And that brings me to the second issue.  They have agreed to some orders in circumstances where the sort of problems that are presenting today were foreshadowed. Those circumstances were the sort of events that Dr Q was told about in 2006.  Dr Q took some time to look at issues about trying to reduce conflict. You wonder, in the circumstances, how the parties could be confident that there would be an environment ten months after the orders were made that would suggest that this child could go freely between these two highly opposed and antagonistic households on a week about basis and there would be no consequences. 

25. There are matters before a Local Court.  To some extent that causes real problems because I cannot embark on orders that are protective in the sense of physical protection because there is a double jeopardy provision in the legislation. The parties need to pick a jurisdiction and run with it. If a party invoke a Court’s jurisdiction under the Crimes Act in relation to the protection of the mother, the child and to some extent others, then that is the place where those issues are dealt with. The fact of the simultaneous proceedings affects the evidence that might be given and the possible prejudice to a party.

26. Having said that; experience suggests that there may be no satisfactory outcome from the AVO proceedings. As I pointed out to the mother; it is inconsistent with her case that in those proceedings the orders sought that would prevent stalking. There is an option in the pro-forma for a more draconian measure in terms of the defendant not approaching any protected person.

27. In summary the parties describe a level of unpleasantness that seems to have escalated over the last part of last year.  It is an agreed fact that that exists.  It is an agreed fact that the child has been exposed to it.  It is a long time since the parties had the benefit of an expert's report.  There is some evidence about intimidating or threatening behaviour by the father recently. It is thin. There is hardly any reference to particular dates and times. However, if any of that was true it would be unambiguously disadvantageous to this child. 

28. Dr Q refers to a history involving some sadness and tragedy in the background of the parties.  In each case, although perhaps exaggerated to some extent by the mother in her case, the parties have suffered illnesses which have had some consequences for them, including, on the father's part, some time ago, considerable time ago, 2005 I think, conceded to have an impact on his behaviour. There seems to be a concession in a document that he prepared for members of a group that he was leading that he had acted in an abusive way to the mother. 

29. At the price of a short delay I think we can be in a more comfortable position to know whether the parties should move forward to the arrangement that they have proposed for this year or whether we can safely leave in place the arrangement they have for last year. 

30. The steps that I would propose is that the parties attend upon a Family Consultant.  They will need to have separate interviews. That is the way we can identify what steps need to be taken in the management of the case. 

31. I will order an Independent Child Lawyer because the mother has been unable to gather the independent evidence that would help with this case. I am thinking in particular of diary notes from the police who the parties say have been present at some of these incidents. 

32. The other thing I should say; it is not unremarkable that the police have been put to welfare checks in both households.  On the other hand; the mother's complaints range from the father threatening to murder someone, through to things that are trivial. She complains that he would not give way on Mother's Day or for unidentified family occasions.  One issue is important and significant; the other issue is more to do with bad manners than anything dangerous. Perhaps, and this is the father's case, it harks back to Dr Q’s suggestion that the mother is prone to exaggeration. 

33. So I appreciate that the course I propose is unfair on the father. It is probably very unfair on this little girl. It is my obligation to be nervous about other people's children. I think the better course is to interrupt the current and proposed regime to get this matter back in some sort of order with independent evidence through the inquiries of an independent child lawyer and the work of a skilled Family consultant.

34. The orders sought by the mother are that the father have blocks of three days at a time with the child in school holidays, supervised time by his parents.  There is no magic about school holidays. On the basis that it is exercised in premises occupied by the paternal grandparents, or one of them, but not requiring close supervision otherwise, I would be prepared to put in place that arrangement as close as possible to the terms of the 2008 provisions of the orders.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate: 

Date: 24 February 2009.