LEARY & LEARY

[2018] FCCA 2105

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEARY & LEARY [2018] FCCA 2105

Catchwords:
FAMILY LAW – Parenting – ex parte application by the father – threats to kill children – where the mother is experiencing anxiety and distress – not satisfied there is an unacceptable risk that the mother will harm the children.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR LEARY

Respondent: MS LEARY

File Number: DNC 290 of 2018

Judgment of: Judge Young

Hearing date: 28 June 2018

Date of Last Submission: 28 June 2018

Delivered at: Darwin

Delivered on: 28 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Wynd

Solicitors for the Applicant: Infinity Lawyers

Counsel for the Respondent: Ms Holtham

Solicitors for the Respondent: Story & Associates

UNTIL FURTHER ORDER

1. That the children [X] born 2014 and [Y] and [Z] both born 2015 to live with the mother.

2. That the mother continue to live in accommodation supplied by Suburb A.

3. That the children spend time with the father at times as may be agreed between the parties and in default of agreement as follows:

   (i)Upon the father giving the mother at least 7 days notice  in writing of his intention to visit the children for up to 4 hours at times convenient to Catholic Care NT for handover on days 1, 2, 4 and 5 of the father’s visit;

   (ii)Upon the father spending time with the children on 4 separate visits that time be extended to up to 6 hour each day on days 1, 2, 4 and 5 dependent upon the availability of Catholic Care NT; and

   (iii)That further time be negotiated or ordered after release of the family report.

4. That handover occur at Catholic Care NT.

5. That the mother attend upon a General Practitioners to obtain a mental health plan and the mother is to follow any recommendation that may follow from such a plan.

6. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children [X] born 2014 and [Y] and [Z] both born 2015 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

7. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

9. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

10. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship [X] born 2014 and [Y] and [Z] both born 2015 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 21 December 2018.

11. That the family report to deal with the following matters:

    (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

12. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

13. That the parties are to telephone the Case Coordinator Children Dispute Services on fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

14. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

15. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

    NOTING:

    A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

    B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 13 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

16. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

17. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

18. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 3 December 2018 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

19. That the matter is adjourned to 4 February 2019 at 11.00am for further consideration.

THE COURT NOTES:

A.That mother will require an interpreter in either the (omitted) language for family report interviews.

B.That the parties may attend a legal aid conference if the Independent Children’s Lawyer considers it appropriate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 290 of 2018

MR LEARY

Applicant

And

MS LEARY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

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 is the third day of a hearing in relation to three children, [X], [Y] and [Z].  [X] is four and [Y] and [Z] are twins aged three.  I have already given some reasons for not making the orders sought by the father initially in an ex parte application, an application that I am satisfied was in significant ways misleading, in that, while relying allegations that the mother had threatened to kill the children, it did not disclose clearly that those threats had been made some three years ago – or maybe 2014, ’15, ‘16.  It is unclear.  I have already given reasons about that issue.

3. I adjourned the matter from last week to today in order to give the mother an opportunity to file material in response once she was legally represented.  I also heard evidence from the mother last week when she was called to give evidence and cross-examined about the threats she admitted making in 2015 or ’16, thereabouts, to kill the children in conversations with the father.  She said then that the threats were made in the context of a highly charged emotional environment where she felt that she was not supported by the father.  She was living in the (country omitted) and she is a (country omitted) citizen and the father is an Australian citizen and she felt that she was not being given adequate support, financial and otherwise, and she had said those things to provoke him. 

4. There was a further allegation by the father that in a telephone call on 14 May of this year after the mother came to Australia late last year to live permanently with the children that a threat to kill had been made again.  When the matter came on today the father included in his further affidavit a transcript of the conversation that occurred on 14 May.  There was a recording.  I heard the beginning of the recording in an effort to ascertain whether the transcript was complete.  I had the impression - though, I am not certain it is the case – that not all of the conversation was recorded as it seemed to begin partway through the telephone conversation.

5. It is clear from the part of the conversation I heard and, of course, I have read the balance of the transcript, that the mother was emotional and upset.  She was in Darwin at the time.  The father was in Alice Springs.  She was, in substance, trying to get him to move to Darwin and live with her and the children and provide a house, it would appear.  Her whole tone is emotional and excited and she did say in a very hurried and almost inaudible way, “If you do that,” and it was unclear what she is referring to, “You know I have been stressed already, I really fucking finish my life and kill the kids.”  It went on and then there was a long conversation with, according to the transcript, at least one more mention by the mother that she would “kill the kids.”  She is complaining about the difficulty of her situation and is crying and is upset, complaining that she does not have any family here and she said that she “can kill the kids.” 

6. The mother gave evidence that the father’s evidence about that conversation was untrue.  It appears that her evidence was untrue.  Nevertheless, I consider judging from the conversation that the threat was made, as I say, in a highly charged emotional environment when the mother is suggesting to the father that he is not adequately supporting her and she wants him to move to Darwin and resume living with her and the children.  Merely based on that, I would probably be unable to make any assessment of whether her threats were real in any sense or created an unacceptable risk of harm to the children, that is, an unacceptable risk of homicide.

7. There are two pieces of objective evidence, however.   The first is some medical notes produced from the Medical Service which record the mother’s attendance on the service on 28 November 2017.  She was apparently assessed by a nurse or a mental health nurse and there are also documents that include a psychiatric assessment by Dr R who is described as a psychiatric registrar.

8. That assessment was undertaken on that day, on 28 November.  The notes entered by the mental health nurse refer to the mother’s reason for attending the clinic. She attended along with the father. It was clear from the notes that as a recent migrant to Australia without social supports or a social network she was suffering from very significant isolation.  It is said that, for example:

   Ms Leary is from the (country omitted) and has been in Australia for three months.  Ms Leary is struggling with being away from country family and friends. 

9. It says some more about her background.  The reason for the referral is recorded as “major relationship breakdown which has resulted in a reciprocal domestic violence order against each other due to their volatile relationship with each assaulting the other.”  In other words, there are indications of family violence.  I mentioned those last week in relation to the aggravated assault charge against the father brought by the police which were originally were withdrawn but had been re-laid I am told.

10. On an “MSE,” which I take stands for Mental State Examination, it was said that she is:

    A 27 year old (nationality omitted) [or perhaps (nationality omitted)], woman of small build, well-groomed and looking stated age, good eye contact, engaging with (sic) on the verge of being tearful, speech rapid and pressured, effect – anxious, spoke about heart racing, sweaty and headaches.  Wanting a CT scan and ECG.  Denied suicidal ideation.  Nil perceptual disturbance.  Insight judgment – fair and intact.  Sleep broken due to her caring for her young children and racing thoughts of her marital discord.  Diet – reports she does not eat well.  Big adjustment from her cultural food to Australian food.  Substances – non-smoker and nil illicit drug use.”

11. She was given a script for Quetiapine.  It was 25 milligrams.  Elsewhere in the report, or from other material, it appears that that is an anti-anxiety drug and a mood stabiliser.  On 29 November there was a phone call from the mother and she complained that the Quetiapine was sedating and she denied during that phone call any current risk to herself or others.  There are some other notes from 30 November, 1 December, 2 December, which was a phone call. On 4 December there is apparently a meeting with something called the “CATT” – I am not entirely sure what that stands for – and on 5 December and further discussion with the mother and also a phone call to the father who stated that counselling was proceeding well.

12. At that stage there was a court date in February relating, I take it, to the aggravated assault charge.  On 8 December, in a telephone call to the mother, it was noted that she said “she was playing with the children. She was busy and laughing at their antics.”  There was a counselling session put in place for the following Monday and the parties’ “relationship appeared to have improved somewhat.  Her medication was helping her cope.”  And on 30 December, there was a telephone call to the mother and she stated she was well.

13. There was, as I say, a more detailed psychiatric assessment dated 28 November conducted by the psychiatric registrar and which records part of the history that I have given relating to the marital discord and domestic violence.  The mother reported some past history of depression after the birth of one of her children and then again after the delivery of the twins.  Her mental state was described as follows:

    Cooperative, communicative in English, verbose with (nationality omitted) (sic) accent.  Nil agitation or involuntary movements.  Speech normal rate.  Mood reports as fine and effect is euthermic and reactive. 

    Thoughts are sequential and having no formal thought disorder.  Content…

    It’s a bit unclear if that word is “content” or something else but it could be “concern”.

    … mainly related to her issues with her partner and poor social status here with no support and she has no friends and family.  Denies suicidal self-harm ideas or aggressive ideas.  Dedicated to taking good care of children and wants to give them good food.

14. The summary was:

    A 27 year old (nationality omitted) girl, looking younger, and cooperative, having domestic issues with partner, financial issues, and recent physical and emotional issues, according to her.  Unemployed and with poor self-esteem.  Wanting to go back home if conditions don’t improve.  With anger issues and mood fluctuations and not on any psychiatric intervention so far and willing to engage with counselling and further reviews.  Working diagnosis:  situational crisis.  Domestic violence issues, relationship issues. 

15. The management plan was:

    To continue counselling with Relationships Australia, to start on a mood stabiliser and review in January 2018. 

16. The mood stabiliser was to be Quetiapine at 25 milligrams a night and it appears that may have been reduced at a later time.  In addition, following the phone call of 14 May, the father attended on the police – it’s unclear whether in Darwin or Alice Springs. The reporting region is “Southern” which would be in Alice Springs but the case officer’s station at the time of the case was Darwin City Police Station.  So where it was, I don’t know; probably Alice Springs, I gather.  The note is recorded as follows:

    A reports [the father] at Alice Springs front counter to report for information purposes that he was instructed by his lawyer to let us know that his wife, Ms Leary, was staying at a women’s shelter in Darwin at an unknown address, had threatened to kill herself and their four children if Mr Leary does not move to Darwin and buy a house for them all to live in.  Ms Leary allegedly made threats by telephone and Mr Leary recorded this.  Action:  nil police action needed. 

    There was then indeed some action because the officer taking the call, P, reports attending Suburb A and speaking with the mother.  She advised that:

    She has one child with her at the women’s shelter and the other three have returned to the (country omitted) until she can find some accommodation in Darwin, at which point they will be returning.  Leary advised she is aware of the complaint made by her ex-partner, advises that he is just trying to cause trouble for her.  Staff at the location were spoken to and they were aware of the allegation made by the complainant as Territory Families received a similar complaint.  They are of the opinion it is a vexatious complaint and they have no concern for Leary or her children.  Nil concern for welfare.  Request matter be finalised. 

17. That report appears to have been made on 31 May 2018.  So there are two independent pieces of information: some notes made by a nurse at the Health Service in Alice Springs over a number of days attending on the mother and the father where it appears that the mother’s anxiety and perhaps mood disturbance was attributed to being a recent migrant to Australia, lacking social support and experiencing domestic violence.  The psychiatric assessment that was undertaken on 28 November reflects that and detected nothing particularly abnormal in the mother’s mental state apart from her experiencing anxiety because of the matters I’ve referred to and as someone in a situational crisis with domestic violence and relationship issues. 

18. None of the objective evidence gives rise for particular concern, in my view. Threats to kill children to those of us who know of cases where parents have committed homicide on their children appear shocking and, indeed, they are shocking.  However, while I consider that the mother’s threats to kill the children are deeply irresponsible and reflect very poorly on her, I’m not satisfied that there is a real risk that the mother will in fact commit homicide.  I think her threats are the result of her isolation, her anxiety and her distress. 

19. I’m not satisfied that there is an unacceptable risk that the mother will kill her children.  As I say, I think the threats, however irresponsible, are likely to be simply the result of her anxiety and distress for the reasons that I’ve already considered. 

20. I’m far from satisfied, even though if I was satisfied that there was an unacceptable risk of harm to these children that would be determinative, that the father has an appropriate degree of parental capacity. The mother alleges that the father has used illicit drugs and annexes to her trial affidavit photos she says she took in the (country omitted) of what appears to be a white crystalline substance in plastic bags. Of course, it’s simply a photo but it has the appearance of methamphetamine in crystalline form.  I know, of course, that the father is presently facing a charge of aggravated assault against the mother.  They’re matters that I would also have to take into account if I was satisfied that there was an unacceptable risk of harm to the children. As I say, I’m not satisfied that is the case. I am not prepared to make the orders sought by the father.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 2 August 2018