Leslie & Arbuthnot

[2007] FamCA 118

[2007] FamCA 118

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA
AT PARRAMATTA

No. PAF.1355 of 2006

BETWEEN:

Mr Leslie

Applicant/Father

AND

Ms Arbuthnot

Respondent/Mother

CORAM:  Justice JPH Stevenson

DATE OF HEARING:                   9 February 2007

DATE OF JUDGMENT:               28 February 2007

JUDGMENT OF THE COURT

APPEARANCES    :           Ms Christie of counsel instructed by Armstrong Legal, Solicitors, DX 933 SYDNEY appeared for the Applicant Father

Mr Schroder of counsel instructed by Smythe Wozniak, Solicitors, DX 29804 ST MARYS appeared for the Respondent Mother

CATCHWORDS

FAMILY LAW - CHILDREN - With whom a child lives - Family Violence
FAMILY LAW - PROPERTY - Exclusive occupation of matrimonial home  - Interim order

THE PROCEEDINGS

1. The parties seek differing parenting orders in relation to their son S, born in March 2005 and now 23 months old.  The wife also sought an order for exclusive occupation of the former matrimonial home at H.  The husband opposed that application and wishes to remain in sole occupation of the property himself.

BACKGROUND

1. The husband, who is 32, and the wife, who is 31, married in September 2001 and separated in August 2006.  There was a previous period of separation in August or September 2005, being of 3 weeks’ or 1 weeks’ duration according to the wife and husband respectively.  

2. In May 2006 the husband made a worrying statement to the wife.  According to the wife, the husband refused to speak to her or the child for some weeks in May 2006 after an argument.  She said to him:  “we can’t go on like this”.  He said: “I have been seeing a counsellor for the last couple of weeks.  I have had thoughts at the back of my mind of killing you out of satisfaction and then killing myself”.  The husband began to see a counsellor, Mr B, in April 2006.  The wife subsequently saw Mr B with the husband.

3. The husband said that the thought of killing the wife and then himself occurred to him only once “and then I could not stop thinking about the fact that I had had the thought.  I was concerned as to why I had ever thought about killing [the wife] and myself and so I sought professional help.”  In his affidavit sworn on 6 February 2007 the husband said “I say I do not admit to saying to the defendant ‘out of satisfaction’”.  Otherwise, this affidavit replied in some detail to an affidavit sworn by the wife on 18 January 2007.  He used the word “deny” or simply gave an alternate version of events in respect of each other allegation which he disputed.  I thus find it curious that he used the words “do not admit” in respect only of the allegation that he said “out of satisfaction” in the context of the murder/suicide threat.

4. On 4October 2006 the husband left a message on the mobile telephone of the wife.  He said:  “The least you could do is fucking let me see him for fucking half an hour.  I am going to fucking rip your throat out.”  The husband admitted that he had left a message in these terms and said that he was “ashamed” of what he had said.

5. On 5 October 2006 the wife attended the former matrimonial home with police officers to collect clothes and personal belongings.  She found that glue and toothpicks had been inserted in the door locks.  The husband admitted that he “did jam the locks” and said that he wished to prevent the wife from entering the premises in his absence.  He said that he did so because he did not wish her to take “joint items” from the home, as he maintained she had done during the earlier separation.

6. On 7 October 2006 the husband spent a short period with the child at the home of the wife’s parents.  It was common ground that the child and his father have not since spent any time together.

7. On 31 October 2006 the wife obtained a final apprehended violence order against the husband, for a period of 2 years.  It seems that he consented to the making of the order, without admission.

8. In November 2006 the wife accessed the husband’s email account and discovered certain correspondence from his brother.  The contents of these emails are indeed disturbing.  I will not set out the full text of this correspondence, which is annexed to the affidavit of the wife sworn on 18 January 2007.  Some of the husband’s brother’s advice to his brother included the following:

   ·“Don’t forget to get the psych report saying you’re normal, use the credit card if you need to bribe the quack.

   ·Keep a journal of every day, most importantly write down how you feel re [the wife] not allowing you to see your son, could be useful in court.

   ·Above all think about any dirt you may know about her or her family, eg her mother and father issues, harmful to [the child[, has [the wife] threatened you in any way, shape or form eg going to look for another man, leaving you and you will never find her…..that sort of crap.

   ·No matter how upset the woman is, this woman in my view is evil, vindictive and driven by a desire to hurt, humiliate, be sadistic (does she enjoy hurting you?) and use all within her power to hurt, to me is a decaying, ugly inner self righteous cunt.

   ·If I was you tomorrow at the solicitors’, tell them this and tell them you are concerned about her state of mind and the wellbeing of your son.  Also tell them she is a teacher and if she is suffering from some sort of mental illness (like…fuckwit disease).  She is a danger to the students, let alone your son and those around her.”

   I will refer below to [the father’s] response these communications.

9. [The father] lives in the former matrimonial home and the parties each pay one half of the mortgage instalments.  He works full time as an inventory controller at D and earns $710 gross per week. 

10. The wife and the child live with her parents in their rented home at E.  She is employed for 3 days per week as a teacher at the C School.  She earns $645 gross per week and receives a parenting payment of $90 per week.  There was an issue as to whether the father pays child support, to which I will refer below.

THE PROPOSALS OF THE PARTIES
The Husband’sProposal

1. The father proposed that the child spend time with him from 8:00am until 6:00pm each Saturday and Sunday and on each Fathers Day.  He proposed that the child’s time with him be unsupervised.  If the court forms the view that supervision is necessary, he suggested that his sister-in-law carry out this role.

The Wife’s Proposal

1. The wife proposed that all of the child’s time with his father be supervised.  Initially, she suggested that they spend time together at the C Contact Centre and, in fact, she completed the intake requirements in December 2006. 

2. The wife became aware of the husband’s proposal for supervision by his sister-in-law only on the morning of the interim hearing.  She readily agreed that the husband’s sister-in-law act as supervisor but asked that the husband’s brother not be permitted to be present during the child’s time with his father.  The husband’s brother is the husband of the proposed supervisor and the author of the emails to which I have referred.  The wife made no proposal as to specific days and times when the child should be with his father.

DISPUTED ISSUES

1. The Wife’s Allegations of Violence and Abuse

2. The wife made generalised allegations of physical violence and verbal abuse on the part of the husband.  She alleged a pattern of conduct on his part, wherein he refused to speak to her for days or even weeks after arguments.  She claimed that he also ignored the child after arguments with her. 

3. The husband denied the wife’s allegations of physical abuse.  He admitted that he swore during arguments, which would be consistent with his concession in relation to the language used in the message left on the wife’s telephone in October 2006.  The husband maintained that both parties refrained from speaking to each other for several days after arguments.

4. It is impossible to resolve these factual disputes in the context of this interim hearing.  It can safely be said, however, that the parties had a volatile relationship which involved frequent arguments. 

5. The Ramifications of The Husband’s Thought of Murder and Suicide

6. The husband conceded that he had thought of killing the wife and then himself.  He said that he sought professional help as soon as he had this thought, as he was very concerned as to the reasons why this idea had come to him.  He maintained that there has been no recurrence of such ideas since the initial incident.  He pointed out that the wife chose to remain in the former matrimonial home with him, and also to keep the child in that environment, for 5 months after she became aware that he had had this thought.

7. The wife pointed to the husband’s thought of murder/suicide as one of several factors which tend to indicate that he is emotional instable.  The reason for her preparedness to remain with the child and the husband in the matrimonial home for 5 months was not addressed in her case.

8. The Husband’s Emotional Stability

9. The husband maintained that several matters, in addition to his thought of murder/suicide, raise real concerns as to the husband’s emotional stability.  The submissions put on her behalf drew attention to the “contract” drawn up by the parties after their reconciliation in September 2005.  Further, these submissions focussed on the husband’s apparent agreement to vacate the former matrimonial home in October 2006 and subsequent change of mind.  In addition, reliance was placed on the husband’s threat to “rip [her] throat out” in the telephone message in October 2006 and his admission that he put toothpicks and glue into the door locks of the former matrimonial home. 

10. The “contract” was drawn up prior to May 2006.  It seems to me that the document merely constitutes a written record of the parties’ agreement as to how they might work towards improving their relationship.  The preparation and contents of the document do not strike me as “bizarre”, as was contended on behalf of the wife.

11. Similarly, I do not regard the husband’s apparent change of mind in relation to vacating the former matrimonial home as “bizarre” behaviour on his part.  It seems that he agreed to vacate the property in exchange for a payment of $2,000 from the wife.  He accepted $1,000 and then refused to find alternate accommodation.  This conduct may well indicate a degree of emotional instability and volatility in the husband at that time. 

12. It seems to me that the matters of real concern in relation to the husband’s psychological state and emotional stability are the thought of murder/suicide; the contents of the telephone message on 4 October 2006; the placing of glue and toothpicks in the door locks and his preparedness to engage in email correspondence with his brother in the terms set out above.  This evidence leaves me with real concerns as to his psychological stability.

SECTION 60CC CONSIDERATIONS
Primary Considerations

1. Nothing in the evidence suggests to me that the child would do other than benefit from having a meaningful relationship with both of his parents.  It does appear to be necessary, at this stage, to put in place safeguards in relation to the time which he spends with his father.  Nonetheless, it seems to me that he will obviously benefit from having a strong, loving relationship with each of his parents as he grows up.

2. It was the wife’s case that there is a need to ensure the child’s physical safety when he is in the care of his father, due to the concerns in relation to the father’s stability.  It seems to me that there is also a need to protect the child from possible emotional abuse by way of denigration of his mother.  His young age would mitigate, to some extent, against the undermining of his relationship with his mother in this way.  Nonetheless, the risk of this kind of emotional abuse of the child by his father and/or his uncle is a matter for serious consideration in my opinion.

Additional Considerations

Section 60CC(3)(b):  the nature of the relationship of the child with:

(i)each of the child’s parents;  and

(ii)other persons (including any grandparent or other relative of the child);

1. There was no expert evidence as to the nature of the child’s relationship with each of his parents.  The history of his care would strongly suggest that the wife was his primary carer prior to the separation, as the husband had a full time job.  It is obvious that she has been his primary carer for the four months since the separation.

   Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

2. The husband complained that the wife has actively sought to limit the time which he and the child are able to spend together.  The inference seemed to be that she had no valid reason for doing so.  In my view, her actions suggest that she acted out of concern for the child’s safety and not from malice directed at the husband.

3. The parties separated early in October 2006 and, in mid December 2006, the wife completed the intake requirements for the C Contact Centre.  She then offered time at the Centre with the child to the father, pending the interim hearing.  In my view, this conduct is not consistent with a desire on her part to exclude the father from the child’s life.  I regard these actions as entirely consistent with a desire on her part to ensure the child’s safety in the light of his father’s behaviour.

   Section 60CC(3)(f): the capacity of:

   (i)each of the child’s parents;  and

   (ii)any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

4. To a large extent, the evidence in relation to the husband’s capacity has already been canvassed.  It may well be that his current psychological state would impact on his capacity to provide for the child’s needs.  It is most likely, in my view, that expert evidence will be required to address this issue in due course. 

5. The wife alleged that the husband failed to pay child support, as assessed by the Child Support Agency.  The husband annexed to his affidavit receipts showing payments of approximately $90 per week.  It is quite possible that this money had not been paid to the wife by the time she swore her affidavit on 18 January 2007.  It is clear, however, that the father is accepting responsibility for contributing to the child’s financial needs.

6. As I have indicated, I have real reservations as to the capacity of the husband’s brother to provide for the child’s emotional needs.  I cannot be sure that he would refrain from denigrating the wife if he were present when the child spends time with his father.  I regard the contents of his emails to the husband as highly inappropriate and irresponsible.  Although the husband disclaimed any agreement with his brother’s views, he replied in November 2006 inter alia:  “You’re right, I should aim at making this mole’s life as difficult as possible…..”.

7. There was evidence that the husband’s brother owns a collection of firearms, with the wife alleging that one such weapon is unregistered.  There was nothing in the evidence, however, to suggest that he has ever acted other than in accordance with the law in relation to his collection of guns. 

The Presumption of Equal Shared Parental Responsibility

1. Pursuant to section 61DA(3) I conclude that it is not appropriate in the present circumstances for this presumption to be applied.  There are serious issues which I cannot determine in the context of these proceedings.  On the available evidence these issues would impact on the application of this presumption. 

2. The disputed matters of fact include the wife’s allegations of physical and emotional abuse of her by the husband.  It is simply impossible for me to make any determination of these issues in the context of this interim hearing.

3. There is a real issue as to the husband’s psychological state and emotional stability.  The evidence before me is sufficient to raise serious concerns in this regard but expert evidence will be necessary to enable proper findings to be made.

4. Since the presumption is not to be applied, there is no need for me to consider whether the child should spend equal or substantial and significant time with each of his parents.  In any event, neither parent sought that he spend equal time with each of them.  The husband’s proposal would not fall within the guidelines for substantial and significant time.

The Best Interests of the Child

1. In my view, the child needs frequent time with his father, having regard to his very young age.  The husband conceded, appropriately in my view, that there should be no overnight periods at this point. The child has not been cared for by his father for 4 months. In my opinion, there would need to be a graduated regime leading to the introduction of overnight time.

2. It seems to me that there are a number of reasons why the child’s time with his father should be supervised.  I have referred to the matters indicative of psychological instability in the husband.  These concerns mean that the child’s physical and emotional safety should be ensured, when he spends time with his father. 

3. The wife agreed that her sister-in-law is an appropriate supervisor.  The sister-in-law’s affidavit evidence, although untested, would suggest that she is a most appropriate person to take on this role.  She is aware of the wife’s concerns and would return the child to her if she observed any risk to him.  She is a qualified child care worker with extensive experience in this field, dating back to 1988.

4. Because of the concerns which I have in relation to the husband’s brother, I propose to order that the brother do all things necessary to ensure that he not be present whenever the child is in his care. 

5. The determination of the frequency and duration of the child’s time with his father was rendered somewhat more difficult by the wife’s failure to put any proposal in relation to these matters.  It seems to me that 1 day per week would best meet the child’s needs.  I regard 8:00am to 6:00pm as too long a period for a child of 23 months of age.  As well, the proposal of the husband’s could well become an imposition on his sister-in-law and her family.  I will order that the child spend time with his father from 10:00am until 4:00pm on each Saturday and every other Sunday.  There will also be provision for the husband and the child to have time together on Fathers Day.

THE APPLICATION FOR EXCLUSIVE OCCUPATION

1. In her affidavit sworn on 18 January 2007 The wife set out her reasons for seeking exclusive occupation of the former matrimonial home.  These reasons can be summarised as follows:

   ·‘all’ of the child’s furniture and belongings are in the home

   ·The husband has begun to remove items from the home

   ·The husband can afford to pay rent for alternative accommodation

   ·conditions in the rented home of the wife’s parents are crowded

2. In his affidavit sworn on 6 February 2007 the husband set out his reasons for wishing to retain occupation of the former matrimonial home.  Effectively, he said that he could not afford to pay rent and continue to service the mortgage.  He maintained that there is no room for him in the homes of his parents or his brother.

3. The available evidence suggests that the wife could not afford to pay the mortgage, if she were to resume occupation of the former matrimonial home.  She earns $645 gross per week and receives a parenting payment of $90, making a total of $735 per week.  She should shortly begin to receive the husband’s child support payments of $90 per week, which means that $825 per week would come into her hands.  She would have the following fixed weekly expenditure:

   Income tax  $130
   Mortgage payment               $550
   Rates  $22
     $702

   She estimated her total weekly expenditure for “food, childcare, nappies and mobile telephone” at $200, which means that her weekly outgoings would amount to approximately $900.

1. I was informed from the bar table that the wife’s parents would assist her with the mortgage payments.  There was no evidence of their willingness or financial capacity to do so.

2. The husband earns $710 gross per week and has the following fixed expenditure:

   Income tax  $160
   50% mortgage instalment    $275
   Rates  $23
   Child support  $90

   $548

   He thus has a small excess of about $160 per week to meet all of his other expenses.  At present the mortgage payments are in arrears.

3. It would seem that the obvious solution would be for the parties to sell the former matrimonial home.  Whether they choose to do so, of course, is entirely a matter for them.  At present, it would seem that neither the husband nor the wife could pay the whole of the mortgage instalments.

4. I cannot see how an order for exclusive occupation in favour of the wife would advance the situation.  She and the child seem to have relative security in the home of her parents.  She may well place herself and the child in a precarious position, if they take up residence in the home and she is unable to service the mortgage.  I will not make an order for exclusive occupation in favour of the wife.

ORDERS

1. I make the following orders:

2. Pending further order, that the child S born in March 2005 (‘[S]’) spend time with the father as follows:

   1.1from 10:00am until 4:00pm each alternate Saturday commencing on 3 March 2007 and

   1.2from 10:00am until 4:00pm each alternate Sunday, commencing on 10 March 2007

   1.3from 10:00am until 4:00pm on each Fathers Day

   1.4at such other times as the parties may agree.

3. Pending further order, that all time which the child spends with the father be supervised by the father’s sister-in-law or such other person whom the parties may agree in writing from time to time.

4. Pending further order, that the father do all things necessary to ensure that the child does not come into contact with his brother at any time and in any circumstances.

5. That 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 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.

6. That the applications contained in paragraphs 5 and 6 of the mother’s Amended Response to an Application in a Case is dismissed.

I certify that these  pages are a true copy
of the reasons for judgment herein of
 her Honour Justice Stevenson.
 
    Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LENCI & ARBUTHNOT