Kyle and Hartley

[2016] FCCA 1980

FEDERAL CIRCUIT COURT OF AUSTRALIA

KYLE & HARTLEY [2016] FCCA 1980

Catchwords:
FAMILY LAW – Parenting – family violence – whether father’s time with children should be supervised – parental responsibility.

Legislation:
Family Law Act 1975, ss.60CA, 60CC, 117

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Dinsmore (2007) FamCA 1383

Applicant: MS KYLE

Respondent: MR HARTLEY

File Number: DGC 3115 of 2014

Judgment of: Judge Small

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Morwell

Delivered on: 22 June 2016

REPRESENTATION

Counsel for the Applicant: Ms Conlan

Solicitors for the Applicant: Wakefield & Vogrig Lawyers

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Self-represented

Counsel for the Independent Children’s Lawyer: Ms Billings, solicitor

Solicitors for the Independent Children’s Lawyer: O'Halloran Davis

ORDERS

1. Leave be granted to the Applicant Mother to proceed on an undefended basis.

2. All existing Orders with respect to the children X born the (omitted) 2007 and Y born the (omitted) 2008 ("the children") be discharged.

3. The Mother have sole parental responsibility for the children.

4. The children live with the Mother.

5. The children spend time and communicate with the Father as follows:

   (a)In the first instance, at Family Life Children's Contact Centre in (omitted) or such other Children's Contact Centre as agreed between the parties in writing ("the Contact Centre") and in default of agreement, Boyd House in (omitted) on the first Sunday of every month or as otherwise directed by the Contact Centre with all costs to be paid by the Father;

   (b)In the event the Contact Centre is not available, then by a professional supervisor and in default of agreement, the Family Contact Service (phone: (omitted)) on the first Sunday of every month or as otherwise directed by the Family Contact Service with the Father to initiate this process and all costs to be paid by the Father;

   (c)Such further and other times as agreed between the parties in mediation.

6. For the purposes of making any changes to the children's time with the Father, the Mother and Father attend for mediation at CatholicCare in (omitted) (phone: (omitted)) no more than once per calendar year, at the initiation of the Father, to discuss how time should progress in the best interests of the children, with any costs to be paid by the Father.

7. The children communicate with the Father by telephone on not less than one (1) occasion per week at times agreed between the parties and failing agreement, each Wednesday from 6.00 p.m. until 6.30 p.m.

8. The Mother shall ensure that the children are able to telephone at any reasonable time the Father as reasonably requested by them.

9. The Mother shall ensure that if the children are not otherwise spending time with the Father on the following days, that they telephone the Father on:

   (a)Father's Day;

   (b)the Father's birthday;

   (c)each of the children’s birthdays;

   (d)Christmas Day;

   (e)such other days as may be agreed in writing and in advance by the parties.

10. The Mother shall sign all documents necessary for the children's schools to provide to the Father, at the expense of the Father, information usually provided to a parent including newsletters and school photo order forms.

11. The Mother shall, as soon as practicable, inform the Father of any medical treatment requiring hospitalisation affecting either of the children.

12. The Mother and Father are hereby restrained by injunction from engaging in or encouraging inappropriate adult conversations with the children about the issues in dispute between the parents and they are specifically are restrained from initiating conversations with the children about the other parent's activities or whereabouts.

13. The Mother and Father are restrained by injunction from denigrating the other parent or any other member of the parent's household in the presence or hearing of the children or allowing any other person to do so.

14. The Mother and Father shall ensure that the children are not exposed to physical or verbal violence, either by them or by any other person.

15. The Mother and Father shall notify the other of any change in their telephone contact details within 7 days of such change occurring.

16. The appointment of the Independent Children's Lawyer pursuant to the Orders of Judge Phipps made the 18th February 2015 is hereby discharged.

17. All extant Applications be otherwise dismissed.

18. The Father pay the Mother’s costs fixed in the amount of $7,437.00 within 90 days.

19. Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

AND THE COURT NOTES THAT:

A. The father did not appear for the delivery of judgment.

B. Where reference is made to agreement being “in writing”, this includes by SMS text message and email.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3115 of 2014

MS KYLE

Applicant

And

MR HARTLEY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter is for judgment today.  It came before me yesterday for final hearing. 

3. The proceedings concern the care, welfare and development of two children, X, born (omitted) 2007 and Y, born (omitted) 2008.  Their parents, Mr Hartley and Ms Kyle, were in a relationship between about April 2007 and the very end of 2011.  The father currently lives in the (omitted) of Melbourne and the mother and children live in the (omitted) area at an address unknown to the father.

4. There is an intervention order in place, naming the mother as an affected family member.  That intervention order is in place until further order.  In other words, it is an indefinite order.  The original one was made, or at least the first after separation, I think was made in July of 2012 and that was then extended and made indefinite.

5. This is a matter where the father’s behaviour is essentially at the centre of these proceedings.  Just to give a bit of further background to the proceedings, they were instituted by the mother in October 2015.  The father has filed one document during the entire proceedings, that being an affidavit that was filed on 28 April 2015.  It was sworn on 18 February 2015 but not filed until a couple of months later.  Essentially, apart from appearing at some hearings, Mr Hartley has taken no further part in the proceedings.

6. He has failed to comply with court orders that he attend for an initial psychological assessment.  In relation to the time that he attended for the family report, he attended on a different day so that the family reporter was unable to see him with the children. 

7. He has failed to comply with orders made that he provide urine screens for drug sampling.  He has not provided a screen for the last 12 months or more and, before that, provided four screens, two of which were useless because they were provided many days and sometimes weeks after being requested, but the other two, which were provided within 24 hours, were drug free.  Nevertheless, there is concern about the father’s potential for drug taking and particularly about his potential for violence.

8. The mother’s affidavit material is full of occasions where the father has physically, mentally, emotionally and financially abused her and, not only her, but her subsequent partner, Mr M, was assaulted by the father and the photographs of him following that assault, which are annexed to the mother’s affidavit of 9 October 2014, are particularly harrowing.  They show Mr M with blood streaming down his face from a wound at the top of his head and the children were at least present in the house.  The assault took place outside X’s bedroom window.  Whether she witnessed it or not, we are not sure, but she certainly witnessed the aftermath and Mr M’s state after that assault in 2012.  That is what led, I think, to the initial intervention order application.

9. Mr Hartley has been charged with two breaches, or twice been charged, I will put it that way, with multiple breaches of his intervention order.  He seems to have treated that order with some contempt and he was sentenced to two prison terms, one of which was suspended.  He served about a month in jail as a result of his breaches and his behaviour, in general, has been violent and abusive.

10. Indeed, I think the most chilling evidence was that the mother says that he mentioned the case of Darcy Freeman, who was thrown from the Westgate Bridge by her father, and the case of the Farquharson children, who were murdered by their father by driving them into a dam, saying that he could understand why a father would do such things. 

11. But I think the most chilling evidence comes not from Ms Kyle herself but from her mother, who filed an affidavit sworn on 6 June this year, and this affidavit is unchallenged.  It is untested but it is also unchallenged and I’m going to read from it.  This is paragraph 5 of Ms N’s affidavit:

    When Ms Kyle and Mr Hartley’s relationship ended, there were numerous incidents causing extreme worry and stress to our family.  Mr Hartley personally told me in an angry, agitated manner: “I don’t fucking care how many years it takes, I’m going to get the bitch.  I’ll break her.  I’ll ruin her career.  I’ll break her mentally, financially and emotionally.  She’ll suffer - I’ll take the kids and she’ll pay.”  This and similar words were repeated several times to me on several occasions with many more swear words throughout.  I recall two specific examples below of how Mr Hartley created mind games to cause worry and doubt:

    (a)  When the little girl Darcy was thrown off the Westgate Bridge, Mr Hartley told me that he could understand a father doing that.  I must have looked shocked because then I recall Mr Hartley smiling back at me and saying to me that he just wanted to see my reaction.

    (b)  When a father drove into a dam resulting in the drowning of his three sons, Mr Hartley told me that he could identify with the man who must have been desperate.  Again, I said those actions were not those of a loving father but they were driven by anger, revenge, hate and a cowardly act.  Mr Hartley just shrugged and did not say anything in response.

12. That a father could mention those horrifying and horrific events and incidents in order to bring concern to his former mother-in-law is just almost unbelievable but that evidence is uncontradicted and I accept it.  I accept the evidence of the mother that Mr Hartley was violent towards her through the relationship, that the children witnessed that violence and that they were subjected to that violence and exposed to it throughout the relationship.

13. If it were not for the positive nature of the three reports from the children’s contact centre which conducted supervised time between the father and the children - well, the last report isn’t particularly positive because Mr Hartley didn’t attend on that day but the other two, the ones that describe the times when he did see X and Y, are extremely positive.  They describe a relationship that is light hearted, that is close, that is fun for the children.  That, of course, is in the context of a children’s contact service where Mr Hartley is closely supervised and would be unable to make any comment to the children that was untoward.

14. The issue before me today is whether Mr Hartley’s time with the children should continue to be supervised.  Can I say that on the evidence before the court, the evidence of his violence during the relationship, the evidence of the assault on Mr M after the relationship, the evidence of his continuing antagonism and clear contempt for the mother and his apparent delight in creating fear in her of his behaviour, that all of that evidence before the court, which is uncontested - it certainly has been uncontested since Mr Hartley filed his only affidavit - that all of that evidence would lead me to believe that there should be no contact between Mr Hartley and the children and had Ms Kyle sought that order, it is highly likely that it would have been made but to her enormous credit, Ms Kyle does not seek that order.

15. She seeks an order that the children be allowed to develop the relationship that they already have with their father as long as that relationship is developed in a place of safety for them and, of course, that is the primary consideration of the court.  When I look at the legal requirements when I’m making decisions such as these, I am taken, of course, to Part VII of the Family Law Act1975 (“the Act”), which deals with parenting orders, and to section 60CA of that Act which sets out in black and white the requirement that:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

16. The Act then goes on to set out some 16 factors which the court must take into account when deciding to make an order that is in the child’s best interest and those 16 factors are found in section 60CC. 

17. There are two primary factors set out in section 60CC subsection (2).  They are the benefit to the child of having a meaningful relationship with both the child’s parents and, second, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

18. The Act then says that where those two things come into conflict, where there is a conflict between the benefit to the child of a meaningful relationship and the need to protect a child from harm, the need to protect a child from harm must be taken as having greater weight than the benefit to the child of the meaningful relationship. 

19. The word meaningful has been discussed in several cases.

20. In the case of Mazorski v Albright [1], her Honour Justice Brown in the Family Court, in her discussion of that issue, said that the word meaningful meant things like important and advantageous and significant but then she said that it is a qualitative adjective not a quantitative adjective.  In other words, it is not the amount of time which makes a meaningful relationship with a parent.  It’s what happens during the time that the parent spends with the child that makes it meaningful.

    [1] Mazorski v Albright (2008) 37 FLR 518

21. That concept was taken further in the case of Tait & Dinsmore[2] when Justice Cronin confirmed, essentially, what Justice Brown had said in Mazorski v Albright but then went a bit further.  He said that the concept of a meaningful relationship includes a parent providing a role model for a child, of teaching a child what it is to be a citizen and a parent in this culture and in this society.  And when I look at those matters, I don’t think it could be said that the father has a meaningful relationship with these children.

    [2] Tait & Dinsmore (2007) FamCA 1383

22. They have a meaningful relationship, in the sense that they enjoy themselves when they are with their father in supervised circumstances, but he has not provided a role model for them that is other than violent and filled with hatred for their mother.  They have observed that violence and that abuse at changeover and they have, as I said, experienced quite severe physical violence perpetrated upon the mother’s subsequent partner.  The need to protect them must be my paramount concern and I certainly take that into account when deciding whether Mr Hartley’s time is to be supervised. 

23. Section 60CC subsection (3) then sets out a further 14 matters which I must take into account. 

24. The first are the views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the court things are relevant to the weight it should give to the child’s views. These children are currently nine and almost eight years old.  They enjoy their time with their father and they want to see him and I certainly take those views into account but I also take into account, that a nine and eight year old do not have the maturity or the cognitive understanding to fully appreciate the effect of what can only be called their father’s contempt and hatred for their mother and the effect upon their mother of that situation and that - well, that feeling on the part of the father.

25. I also need to take into account the nature of the relationship of the child with each of the child’s parents.  Clearly, the children have a safe and warm and loving and protective relationship with their mother and a highly appropriate relationship.  She has done everything she can to protect these children and she has looked after them and taken care of them for their whole lives.  She cannot be faulted in her ability as parent.

26. The nature of the father’s relationship with the children includes their memory of the events where Mr M was assaulted.  They have seen the perpetration of further verbal and emotional violence upon their mother and they, themselves, have said to the family reporter that while they want to see their father, they would prefer that somebody else be present, that they feel safer when somebody else is present.  So I take that into account too.

27. I must take into account the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child. 

28. There have been, in this case, considerable periods where the father has had no time with the children, where he has not taken that opportunity although the mother has been reluctant because of his violence to allow that time, in any event but he does not appear to have wanted to take much responsibility for the children in terms of their long term care or the decisions to be made about them.

29. I must take into account the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child.  There is evidence before the court that the father has been most reluctant to pay child support.  I think Ms Conlan, for the mother, in her submissions yesterday said that he had paid, on average, since separate something like $12 per month in child support and yet he tells the family reporter that he works very hard, up to 80 hours a week.  That tells me a lot about Mr Hartley’s view of his obligation to maintain his children.

30. I need to take account of any likely effect of any change in the child’s circumstances, including the effect of any separation from either of the parents or from any other child or any other person who is significant to the child.  The significance, in this case, of the effect of the change in the child’s circumstances, if I were to order that the present regime of supervised contact be terminated and that Mr Hartley be allowed to see these children in an unsupervised setting, would be that the children’s feelings of concern about being alone with their father would be raised.

31. The mother’s feelings of fear and concern about the children’s safety in their father’s care would be indeed raised, I think, beyond a level which is commensurate with her ability to properly provide for the emotional wellbeing of these children.  That is where the evidence leads me. 

32. The practical difficulty and expense of the time between the children is a factor I need to consider. The father now lives in the (omitted), the children live in the (omitted) area and there is certainly some expense and difficulty involved in the children spending time with him.

1. I need to look at the capacity of each of the children’s parents to provide for the needs of the child, including their emotional and intellectual needs.  There is no doubt that the mother has the capacity for meeting these children’s needs.  She has done so since their birth and she has ensured that they are kept safe wherever possible and, as I said, I cannot fault the mother’s parenting of these children.

2. The father’s capacity to take care of the children’s emotional needs is highly questionable.  He has shown that under supervision he can behave appropriately, that he can make time with the children fun for them and that they can have some meaningful connection.  But outside supervision, he has shown that he is not able to do that.  He has exposed the children to family violence at changeover.  His negative feelings for the mother have not diminished over time and he has not shown that he can meet these children’s emotional needs in the general sense of those words.

3. I need to look at the maturity, sex, lifestyle and background of the child and either of the child’s parents and any other characteristics of the child that the court thinks are relevant.  That’s usually used where there are cultural differences between the parents.  That is not the case here but can I say that the maturity of the father is in some doubt.  The passage I read from the grandmother’s affidavit shows a level of immaturity that is frightening and chilling.

4. He has behaved in a manner in these proceeding which has been extremely immature and I have some very grave concerns about his ability to mature, particularly on the basis of Dr C’s psychiatric report, which says that he has some anti-social personality traits and that he has suffered from major depression in the past.

5. The next matter which is relevant to these proceedings because the child is not of Aboriginal or Torres Strait Islander descent, is the attitude to the child and to the responsibility of parenthood demonstrated by each of the child’s parents.  Again, I can only say that the attitude to the children and to exposing them to the hatred he has for their mother is an appalling attitude for a parent to show to a child.  These children have been exposed to horrendous situations and the father’s attitude shows a disregard for the welfare of his children that is just, as I said, appalling.

6. I need to take into account any family violence involving a child or a member of the child’s family and any family violence order.  I have already said that the mother’s affidavits are replete with examples of the family violence this man has perpetrated upon her.  Those allegations that she makes are uncontested.  They are supported by criminal charges against the father in relation to those matters and he has, as I said, served a term of imprisonment for violent offences and violent offences related to the family and related to the breakdown of his relationship with his children’s mother.

7. The family violence in this case is almost overwhelming and the nature of the family violence protection order is that it is in effect, as I have said, to last until further order.  It is, in effect, an indefinite intervention order against the father being in contact with the mother.  I take those circumstances very seriously because I believe that section 60CC subsection (2A) requires me to put those things higher than almost any other matter.

8. I need to take into account whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.  I’m not convinced that the orders that I’m about to make will not lead to further proceedings but they will protect these children and I think that is a much more important factor to take into account.  It is a matter for the father whether he wishes to make further applications but, of course, he would need to show that a change in circumstance had occurred and he would need to show that he had developed a much more adult and mature and measured attitude to his responsibility as these children’s parent.

9. And then the last factor that I need to take into account is any other fact or circumstance that the court considers relevant and, in that situation, I take into account the father’s lack of compliance with almost all orders that he provide drug screens, with his failure to comply with other court orders when he knew very well that he needed to comply with them.  He has shown a contempt for the court in doing so that is, again, very concerning to the court.  And his attitude at the hearing yesterday was, “All I want is to see my kids once a month and talk to them on the phone once a week.”  Well, Mr Hartley, I’ve heard that and it is the proposal of the mother and the independent children’s lawyer that he be permitted to see the children once per month at a children’s contact service or supervised by a private supervisor and I intend to make those orders.

10. This is a particularly concerning case.  The father’s attitude is reprehensible in relation to these children.  He presents as a mature and sensible man.  He turns up in court in a suit and tie.  He looks respectable but his behaviour is reprehensible and just an appalling model for his children.  For all of those reasons I will make the following orders and I note that all but order (4) of these orders are agreed by the parties.  I will proclaim the orders for the court record but note that all but orders (4) and (5) are actually by consent between the mother and the independent children’s lawyer.

11. The mother’s application for costs comes before me in circumstances where she has been wholly successful in the proceedings, where the father has been wholly unsuccessful, in that the only real issue before the court at the hearing yesterday was whether the time between the father and the children should be supervised and I have given reasons why I have made orders that that time continue to be supervised until the parties agree in mediation that that requirement for supervision can be removed.

12. That is a very, can I say, unusual order to make but I think it is appropriate in these proceedings.  The father has failed to comply with court orders.  That is one of the reasons we ended up in court yesterday.  The father has been wholly unsuccessful.  His conduct in these proceedings has been appalling.  They are all factors under section 117 subsection (2) which I must take into account when I’m looking at whether a costs order is appropriate.

13. I think it is appropriate to make a costs order against the father in these circumstances.  He has shown a contempt for the court and for the mother.  He promised - in fact, he threatened - when he spoke to the grandmother soon after separation that he would financially ruin the mother as a result of her leaving him and he has done his level best to do just that.  She has spent in excess of $25,000 of her own money in pursuing these proceedings and he has spent nothing. The mother now asks for a modest amount, $7,437, being the amount that she has incurred in preparing for this final hearing and for her counsel’s appearance at this hearing.  I think that is modest and reasonable to an extent that I would not have expected and I have no hesitation in awarding those costs and I will give the father 90 days in which to pay them to the mother’s solicitors.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 25 August 2016