Levy and Mollison

[2020] FamCA 582

FAMILY COURT OF AUSTRALIA

LEVY & MOLLISON [2020] FamCA 582

FAMILY LAW – CHILDREN – Interim – Where the father seeks to dispense with the requirement for time with the child to be supervised – Where the father seeks overnight time with the child – Where the circumstances have not significantly changed since supervision orders were imposed – Where the allegations of family violence can only be resolved at final hearing – Application dismissed.

APPLICANT: Mr Levy

RESPONDENT: Ms Mollison

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: SYC 492 of 2017

DATE DELIVERED: 20 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Todd

SOLICITOR FOR THE RESPONDENT: Santo Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

IT IS ORDERED

1. That the Application in a Case filed on 26 February 2020 and sealed on 16 March 2020 is dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 492 of 2017

Mr Levy

Applicant

And

Ms Mollison

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2019 reasons were delivered and orders made in respect of proceedings relating to the parenting of X who was born in 2016. The matter came before me by way of an application to review the decision of the Senior Registrar made on 4 September 2019 when orders were made for the father’s time with X to be supervised.

2. The applicant in those proceedings was the father, Mr Levy and the mother, Ms Mollison, was the respondent.

3. In the reasons for judgment I said:

   The allegations made by the mother, and the father’s communications with her, raise the risk that the father is unable to contain his hostility towards the mother in his dealings with X. If the mother’s evidence is accepted, there have already been instances where X was present and experienced the father’s hostility towards the mother. On his own evidence, he appears to have given priority to filming X’s distress and messaging the mother to comforting the child.

   I accept that the father has not sent any offensive or threatening messages to the mother since 6 August 2019 but there remains a risk that he will not be able to contain his hostility on changeover and that he will not be able to restrain himself from making comments to X about her mother.

   Those risks cannot be addressed by supervised changeovers.

   Supervision by a professional agency will protect X from the father’s attitude towards the mother and provide a record for the substantive hearing of his interaction with her.

4. In the reasons delivered on 22 November 2019 I set out fully the father’s communications with the mother in which he referred to her variously as a “fucken idiot’; a piece of shit; a “fucken dog”; and a “cunt”.

5. The orders made on 22 November 2019 confirmed the requirement for professional supervision and continued the requirement that the father have hair follicle testing because of his previous history of substance abuse.

6. A Family Report has been prepared and directions have been made for the preparation of trial affidavits. The matter has been placed in the call-over on 14 August 2020 for the allocation of hearing dates.

7. The matter presently before the Court is a further Application in a Case filed by the father.

8. On 16 March 2020, the father filed an Application in a Case in which he seeks to vary the orders made on 22 November 2019 by dispensing with the requirement for supervision and to spend unsupervised time with X, initially each Saturday from 9am to 5pm for a period of four weeks and then, in alternate weeks from 9am Saturday until 5pm Sunday or from 9am Sunday until 9am Monday.

9. The father also seeks a suite of orders for time on special occasions; to vary the present drug testing regime and for orders relating to the provision of information about X.

10. The mother opposes the application, as does the Independent Children’s Lawyer.

11. The father relies on an affidavit sworn by him on 26 February 2020. That affidavit was prepared by a solicitor although the father appeared for himself before me. He also tendered supervision reports and drug testing results indicating that he has not used drugs since the relevant testing regime commenced.

12. On 16 December 2019 the father sent an email to the mother stating:

    First of all I would like to apologise for my disgraceful txt messages to you. They were inappropriate and totally not called for. There is no excuse and I’m sorry. I hope in time you can forgive me.

13. The email then continued with a proposal in relation to further communication. The mother questions the sincerity of the apology which will be a matter for cross-examination in the substantive hearing.

14. From 29 February 2020 the father advised the supervision company that he would only see X fortnightly, not weekly as allowed in the orders, because he said he could not afford the costs of supervision.

15. The father’s case is that circumstances have significantly changed.

16. Firstly he refers to his completion of a parenting course which he deposed to have been “invaluable”. The father deposed that he had learned that communication with the mother is important and that there should not be arguments at change over. The father tendered the certificate of his attendance confirming that he completed the course on 19 June 2017. He had the benefit of everything he had learned in the course when he embarked on the course of action that culminated with his conduct in August 2019.

17. Secondly the father deposed that he has limited his consumption of alcohol.

18. Thirdly, the father deposed that he is seeing his therapist regularly. There is no report from the therapist.

19. Fourthly, the father completed an Anger Management Course which he commenced in January 2020. There is no evidence about the course providers or their qualifications or the content of the course.

20. As to his inability to afford continued supervision, the father deposed that the supervision costs $341 per session.

21. He relied upon a Financial Statement sworn 22 January 2020 wherein he deposed that his weekly income is $4,313 and his weekly expenses, including the cost of supervision, are $4,334. Since the father did not complete Part N of the Financial Statement, the evidence in relation to his living expenses is limited and confined to his statement “Living expenses, bills (E$815 per week). He also deposed to paying $90 per week for “stock expenses”. The father claimed as an expense $100 per week for credit card repayments which I would not allow as an expense because to do so would be to double count his daily expenses paid for on the card.

22. I am not convinced that the father is unable to afford the cost of supervision. He concedes that he can afford fortnightly supervision.

23. A Family Report has been prepared and was released to the parties on 7 July 2020. The Family Consultant provided her views in relation to both the allegations of family violence, and to the issue of the father’s offensive and disrespectful communications with the mother, properly noting that the competing allegations cannot be resolved without a full hearing.

24. In relation to family violence, the Family Consultant stated:

    [The mother’s] allegations against [the father] regarding family violence are very serious. If there is any substance to [the mother’s] allegations this raises considerable concerns about [the father’s] current and future parenting capacity. Perpetrators of family violence often have harsh or authoritarian parenting styles and it is not uncommon for them to gradually undermine children’s relationships with the other parent. Girl children who experience family violence have a heightened risk of becoming victims of family and/or interpersonal violence themselves. If [the mother’s] allegations of family violence are accurate, this raises serious concerns about X’s future emotional wellbeing and developmental progress, particularly if [the father] continues to hold negative attitudes toward [the mother]. If [the mother’s] allegations regarding [the father’s] behaviour toward her during changeovers are accurate, this would raise serious concerns about X’s emotional wellbeing as she would undoubtedly be cognisant of any conflict or negative energy in that space. If the Court prefers [the mother’s] accounts of changeovers, it may be necessary for X’s time with [the father] to continue under formal supervision until this issue is addressed.

25. The issue of the disputed allegations of family violence remains alive and cannot be resolved until such time as there is a hearing where the competing evidence can be fully explored.

26. In relation to the tenor of the father’s communication with the mother, the Family Consultant stated:

    [The father’s] text messages to [the mother] in August 2019 are of serious concern to the Family Consultant (outlined from paragraph 13, in [the mother’s] affidavit dated 8 August 2019). These messages are overtly hateful and very disturbing and may lend weight to [the mother’s] allegations of family violence and her proposal to relocate. The messages belie a very poor attitude to [the mother], which is particularly concerning given the recency of them, and that X was in [the father’s] care at that time, after spending no time with her father for two months. The messages indicate that [the father] was in an agitated state for part of the time that X was in his care, which may have compromised his ability to meet X’s care needs at that time. It is most certainly not in X’s interests for her father to hold such attitudes to [the mother], and X could potentially be at risk of absorbing these views. This could potentially undermine [the mother’s] parenting of, and relationship with, X. [The father’s] framing of the text messages as “inappropriate” is quite alarming and a good indication that he does not understand the seriousness of them or the underlying attitude that they indicate. The messages indicate that [the father] has little if any respect for the mother of his child and a lack of insight into the impact of his behaviour on X. The Family Consultant has no doubt that X is very much-loved by her father, however, [the father] seems to have fallen into the trap of dwelling on his negative emotions in relation to [the mother], when it is imperative that he focus on nurturing a positive relationship with X now. It may benefit X if [the father] would consider completing a men’s behaviour change program.

27. Again the Family Consultant raises issues that cannot be resolved until the substantive hearing.

28. I accept that the supervision reports provided by M Services show a loving and appropriate relationship between X and her father and that there is no instance reported of the father’s being disrespectful or critical of the mother. However, that is in circumstances where the father is well aware of the supervisor’s presence and reporting function and where there is no contact between the father and the mother.

29. Whether the father can continue to restrain himself in the absence of a supervisor and in the presence of the mother is untested.

30. Having regard to the seriousness of the Family Consultant’s concerns about this issue, it is not appropriate that the need for supervision be revisited until the father’s attitudes towards the mother can be explored in cross-examination.

31. The father’s application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 July 2020.

Associate: 

Date:  20/07/2020