LEWIS & LEWIS
[2020] FamCA 1081
Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 18 December 2020
FAMILY COURT OF AUSTRALIA
| LEWIS & LEWIS | [2020] FamCA 1081 |
| FAMILY LAW – Parenting –Where the mother seeks orders for the children to live with the her – Where the mother seeks orders that the children spend no time with the father – Where the father seeks equal shared responsibility for two of the three children – Where serious allegations of family violence have been made – Where the eldest child has severe mental health issues and deeply hostile attitude towards the father – Where the eldest child has expressed suicidal and homicidal ideation in relation to the father – Where the eldest child has threatened possible suicide, self-harm or homicide of his younger sisters are ordered to spend any time with the father – Whether the Court should await release of Single Expert family report before further considering if younger sisters should spend time with the father – Turns on its own facts FAMILY LAW – Spousal maintenance –Where the mother seeks orders for spousal maintenance –Where both parties will receive $150,000 after sale of former matrimonial home –Where the mother has no present source of income – Claims that due to care of children she will find it difficult to find work – Where the father contends that he also does not have capacity to pay any spousal maintenance – Where the father has greater income but higher expenses – Where payment of $100 per week ordered. |
| Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG, 61DA, 65D, 65DAA, 65DAC, 72, 74, 75, 77, 80 Family Law Rules 2004 (Cth) Div 15.5.2 |
| A & A (1998) FLC 92-800 B & B (1993) FLC 92-357 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Boyce & Boyce [2015] FamCAFC 60 CDJ v VAL (1998) 197 CLR 172 Cox & Pedrana (2013) FLC 93-537 Crouper & Mitchell [2014] FamCAFC 246 Damiani & Damiani (No 2) [2009] FamCAFC 215 Dundas & Blake (2013) FLC 93-552 Eaby & Speelman (2015) FLC 93-654 Fewster & Drake (2016) FLC 93-745 Goode & Goode (2006) FLC 92-286 Hall v Hall (2016) 257 CLR 490 Helbig & Rowe and Ors [2016] FamCAFC 117 In the Marriage of A (1998) FLC 92-800 M v M (1998) 166 CLR 69 Maldera & Orbel (2014) 52 Fam LR 24 Marvel & Marvel [2010] 43 Fam LR 348 MRR v GR (2010) 240 CLR 461 N & S and the Separate Representative (1996) FLC 92-665 Osferatu & Osferatu [2012] FamCA 408 Redman & Redman (1987) FLC 91 Robertson & Sento [2009] FamCAFC 49 Salah & Salah (2016) FLC 93-713 SCVG & KLD (2014) FLC 93-582 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Lewis |
| RESPONDENT: | Ms Lewis |
| INDEPENDENT CHILDREN’S LAWYER: | El Baba Lawyers Pty Ltd |
| FILE NUMBER: | SYC | 1716 | of | 2020 |
| DATE DELIVERED: | 17 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 16 & 23 September 2020, and 9 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | De Saxe O'Neill Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies SC |
| SOLICITOR FOR THE RESPONDENT: | Edwards Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms El Baba |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | El Baba Lawyers Pty Ltd |
Pending Further Order, The Court Orders
That:
(a)the Child X born … 2003 (“X”) live with the mother according to his wishes;
(b)Y born … 2008 (“Y”) and Z born … 2010 (“Z”) live with the Mother, Ms Lewis (“the Mother”).
That Y and Z have communication with the father in accordance with these orders.
That for the purposes of communication, the Father, Mr Lewis (“the Father”) be permitted to contact Y and Z via email up to three times per week and the following shall apply:
(a)Within 7 days of the date of these Orders the Mother shall create an email address for both Y and Z and advise the Father’s solicitors of the email addresses forthwith;
(b)That the Father be restrained from discussing with Y and Z any matters concerning X or the Mother;
(c) That the Father be restrained from denigrating the Mother or X;
(d)The Mother use her best endeavours to encourage Y and Z to access the emails received from the Father;
That the Mother:
(a)be restrained from discussing with or making X aware of Y and Z’s communication with the Father;
(b) be restrained from denigrating the Father;
(c)use her best endeavours to ensure that Y and Z do not discuss or make X aware of their communication with the Father.
That, without admissions, the parties shall within 14 (fourteen) days of the date of these Orders do all acts and things to enrol in a post separation program such as B Program through E Service, C Program through F Service or D Program through G Service and provide evidence of such enrolment to the Independent Children’s Lawyer and thereafter upon completion, provide evidence of completion to the Independent Children’s Lawyer.
That the Mother continue to attend upon her treating psychologist and do all acts and things to implement any recommendations of such psychologist.
That the Father is at liberty to forward Y and Z a letter/card/gift on their birthdays, Easter and Christmas to the Mother’s postal address. The Mother shall notify the Father’s solicitor in writing of any change of postal address within 7 days of such change.
That the Father be at liberty:
(a)to contact the school of Y and Z to ensure he receives a copy of school reports, photographs and newsletters;
(b) to attend events at the school of Y and Z to which parents are invited;
(c) to speak with Y and Z at such events in accordance with their wishes.
That for the purposes of Order 8 above:
(a) neither party shall approach or speak with the other party;
(b)Both parties shall use their best endeavours to remain no less than 30 metres apart;
(c)the Father shall not exercise the liberty therein if specifically requested not to do so by the school, teachers and/or school counsellor.
Each party be restrained from discussing these proceedings or the issues raised in these proceedings with or within the presence or hearing of the Children.
That each party be restrained from denigrating the other party, or any other future partner, or family member, in the presence or hearing of the children and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence or hearing of the Children.
That leave be granted to the Independent Children's Lawyer to relist the matter in the event of non-compliance with these Orders upon the giving of seven days written notice
That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to the Single Expert and that the fees in respect of that photocopying be waived.
That leave be granted to the Independent Children’s Lawyer to provide copies of all documents deemed by the Independent Children’s Lawyer to be relevant, including but not limited to Orders made, and Memorandums and Reports prepared in the proceedings to X’s treating psychologist Ms. H.
That leave be granted to the Independent Children’s Lawyer to provide a copy of these orders and reasons for judgment to the Single Expert appointed by consent
That:
(a)The Independent Children’s Lawyer explain these orders to the Children; and
(b)the Mother forthwith take all necessary steps to arrange an appointment for the children with the Independent Children’s Lawyer, at such time, and place as may be specified by the Independent Children’s Lawyer.
That within 14 days after the release of any Single Expert report prepared in accordance with the orders of the Court made on 16 September 2020, the Independent Children’s Lawyer apply to have the matter relisted for mention.
The Court Notes
That after the release of the Single Expert report ordered in these proceedings it may be appropriate or necessary to give further consideration to interim parenting orders.
SPOUSAL MAINTENANCE
That pursuant to section 72 of the Family Law Act (Cth) 1975, the Father pay the Mother periodic spousal maintenance in the amount $100 per week, to an account nominated by the Mother from time to time, with such payment due on Thursday of each week commencing from 21 December 2020, and to be deposited into the Wife’s bank account, namely, BSB …, Account number …74.
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 Lewis & Lewis 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 1716 of 2020
| Mr Lewis |
Applicant
And
| Ms Lewis |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and property proceedings between Mr Lewis (“the father”) and Ms Lewis (“the mother”) This judgment concerns their children, X, born … 2003, Y, born … 2008, and Z, born … 2010 (“the girls”).
This judgment concerns issues of interim parenting orders and spousal maintenance. In the parenting debate, the main focus of contest was the impact of X’s situation on the question of whether his sisters should spend time with their father. It was common ground that X suffers a range of severe mental health problems, including suicidal ideation, which will be detailed later in these reasons. There is evidence that X attributes his problems to the father’s role in his life. The father does not seek orders for X to spend time with him. He seeks only orders for the girls to spend time with him. As these reasons make clear, I am not satisfied any reason has been shown for the girls not to spend time with their father, apart from serious concerns about the response of X if they do. There is evidence X has threatened to take his own life, or kill his father, if the girls spend any time with the father.
The father contended that the central parenting question is how the Court should balance any risk to the girls against the desirability that they should see and spend time with their father. To put it another way, the father suggests that the question is whether the benefit to the girls of their relationship with the father should be held hostage to X’s mental illness. As these reasons will disclose, the dominant question is broader; namely, how the Court should balance any risk to the girls and to X, if the Court ordered the girls to have time with their father.
The mother also makes an application for spousal maintenance.
Brief history
The father was born on … 1977, and presently works as a professional.
The mother was born on … 1978, and acts as a homemaker.
The parties commenced cohabitation in 2003. X was born soon thereafter. They subsequently married on … 2007, prior to the birth of both girls.
Y was born on … 2008. Z was born on … 2010.
By April 2017, X started demonstrating concerning behaviour, including disclosing suicidal thoughts to another student at school.
The parties separated on a final basis on 31 January 2019, when the mother left the former matrimonial home with the children.[1]
[1] The mother states separation took place on 31 January 2018, but this appears to be in error.
After separation, the parties entered into informal parenting arrangements, which included agreement for X and the girls to have overnight time with the father. There was no dispute that between January 2019 and February 2020 the children spent regular and frequent time with the father.
In accordance with his wishes, X has not spent time with the father since 17 November 2019.
On 2 February 2020, the mother unilaterally ceased any time between the father and the girls. According to the mother, she did so as the girls expressed a fear of the father and refused to spend time with him.
The girls have not spent time with the father since February 2020.
The mother commenced proceedings in the Federal Circuit Court on 13 March 2020.
The mother filed an Application in a Case on 20 April 2020, seeking a range of orders including spousal maintenance, sale of the former matrimonial home, and the appointment of a Single Expert to prepare a family report.
On 21 April 2020, the matter was transferred to the Family Court of Australia, and an Independent Children’s Lawyer (“ICL”) was appointed.
Specific orders were made preventing the parties from having access to the medical records of X, on the basis that treating medical practitioners suggested that such access would be contrary to X’s mental wellbeing.
Orders were also made on the same day for the personal protection of the mother, and preventing the father from contacting the children without the written agreement of the mother, albeit these orders were not by consent.
The father filed a Response on 26 May 2020 seeking dismissal of the mother’s Application.
The parties were able to resolve a large number of financial issues by way of Consent Orders made on 7 September 2020 (“the Consent Orders”). These orders provided for the sale of the former matrimonial home, with such proceeds to be used to pay the usual costs of sale and associated mortgage, in payment of $150,000 each to the mother and father, and the balance to be held in an interest bearing account. Pending the sale of the home, however, the father was to pay any and all outgoings associated with the property. Additionally, pursuant to the Consent Orders the mother was to return the father’s motor vehicle.
The matter came before me for interim hearing on 16 September 2020.
Interim Hearing
The interim hearing was unable to conclude in the two hours for which it was listed.
Primarily this was a result of the previously mentioned injunction which prevented the parties, as well as their solicitors, from viewing the subpoena material relating to X’s mental health records.[2] I note that the ICL was granted access to this material by consent on 19 August 2020.
[2] Under the orders of 21 April 2020.
More specifically, the ICL was concerned that her view of the matter was substantially shaped by the subpoena material which no other party had seen. She was also unable to tender or make specific reference to such material because of the injunction made on 31 April 2020. She submitted, correctly, that this limited the Court’s ability to act on all relevant and available evidence and in the best interests of all the children.
It is necessary to trace the course of the proceedings thereafter, to explain the manner in which a substantial amount of additional evidence was submitted to the Court.
On 16 September 2020, orders were made by consent discharging the injunction relating to the subpoena material, and leave was granted to the parties’ legal representatives to view such material. It was agreed that, at least at first instance, the parties would not be able to view the material personally.
The matter was then listed for mention on 23 September 2020 for submissions to be made as to the extent to which either party wished to seek instructions about the additional subpoena material. After argument, orders were made for the parties to have leave to view the documents in the presence of their legal representatives, without personal access to any copies. Leave was also given to the parties to tender further documents and submissions.
The issue of spousal maintenance was not reached during the initial interim hearing on 16 September 2020, and as both parties were content for that application to be dealt with by way of written submissions, orders were made to this effect.
The matter was further complicated on 6 October 2020, when the mother filed a further Application in a Case and an accompanying affidavit seeking leave for her Application to be heard on short notice, and leave to re-open the matter to adduce further evidence.
According to her affidavit, significant and traumatic events concerning X, and to a certain extent concerning the father, had occurred following judgment in the interim hearing being reserved.
The matter was mentioned again on 9 October 2020. Given the nature of the evidence, all parties agreed that the matter should be re-opened. Orders were made allowing all parties to file further submissions, as well as any further tender bundles arising from fresh subpoenaed material.
Due to the late production of the relevant subpoena material, the schedule for further submissions was extended. Judgment was reserved on 13 November 2020.
Competing proposals and Issues
Pursuant to her Case Outline dated 14 September 2020 and emailed to Chambers on the same day, the mother seeks the following orders:
CHILDREN:
Time with parents
1.That the children live with the Mother.
2.That the children spend no time with the Father.
SPOUSAL MAINTENANCE:
Urgent Spousal Maintenance
3.That Pursuant to section 77 of the Family Law Act 1975, the Applicant Husband pay the Respondent Wife urgent periodic spousal maintenance in the amount $1,505 per week, to an account nominated by the Respondent Wife from time to time, with such payment due on Thursday of each week (commencing two (2) business days after the date of these Orders), and to be deposited into the Wife’s bank account, namely BSB …, Account number …74.
Spousal Maintenance
4.That pursuant to section 72 of the Family Law Act 1975, the Applicant Husband pay the Respondent Wife periodic spousal maintenance in the amount of $1,505 per week, to an account nominated by the Respondent Wife from time to time, with such payment due on Thursday of each week (commencing two (2) business days after the date of these Orders), and to be deposited into the Wife’s bank account, namely BSB …, Account number …74.
PROPERTY SETTLEMENT:
Disclosure
5.That within twenty-eight (28) days of the date of these Orders, the Husband shall provide to the Wife by way of disclosure all documents within his respective possession, power or control that are relevant to any of the issues that are the subject of these proceedings.
Pursuant to his document titled “ORDERS SOUGHT BY THE APPLICANT FATHER” and emailed to Chambers on 11 September 2020, the father seeks the following orders:
1.That the parties have equal shared parental responsibility for the children of the relationship namely X born … 2003, Y born … 2008 and Z born … 2010.
2.That the mother forthwith provide with father which such information as he may request regarding X’s health and whereabouts.
3.That in consultation with X’s treating specialists, and if advised by the specialists, the father and X attend such family therapy as may be advised in order to repair their relationship.
4.That the children Y and Z shall spend time with the father as follows:
4.1. During school terms, on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday where Monday is a public holiday, with the father to collect the children from school at the commencement of time, and return the children to school at the conclusion of time.
4.2. On father’s day if the children are not otherwise in the father’s care, from 9am on father’s day to the commencement of school the following Monday.
4.3. On each of the children’s birthdays as follows:
4.3.1. If the birthday falls on a weekday, from the conclusion of school until 5.30pm.
4.3.2. If the birthday falls on a weekend, from 3pm – 5.30pm if the children are not otherwise with the father on that day.
4.4. For the first half of all school holidays in even numbered years commencing 2020, and for the second half of all school holidays in all odd numbered years commencing 2021, with school holidays defined as commencing on the last day of term that children are required to attend and commencing on the first day of term that children are required to attend.
4.5. At such other times as may be agreed between the parties.
5.School term time pursuant to order 4.1 hereof shall be suspended during all school holidays.
6.School term time pursuant to order 4.1 hereof shall recommence on the first weekend after school resumes, with the parent who did not have the last weekend before the school holidays having the first weekend after school recommences and alternating thereafter.
7.If the children are in the father’s care on any of their birthdays the children shall spend from 3.00pm – 5.30pm with the mother.
8.The mother may telephone or skype the children on the mother’s birthday in the event that the children are not in the mother’s care on that day.
9.If the mother’s day falls on the father’s weekend, the mother’s time shall commence at 9 am on mother’s day.
10.All changeovers that do not take place at school shall occur by the parent into whose care the children are going, collecting the children from the residence of the other parent.
11.The party with whom the children are not residing may telephone the children at 9am on Easter Sunday and at 9am on Christmas morning.
12.The parties shall inform each other of their residential address within 14 days of these orders and within 14 days of any change of residential address.
13.The parties shall inform each other of their mobile phone numbers for emergency contact within 14 days of these orders and within 14 days of any change to their mobile number.
14.In the event of any of the children’s illness or emergency the parent having care of the children shall contact the other parent and inform them forthwith, and shall advise and consult with the other at the earliest opportunity in the event that issues arise in relation to non-emergency medical concerns for the children.
15.The parents will consult one another to ensure, in so far as possible, that any appointments made for the children with Specialists and other medical practitioners, can be attended by both parents.
16.Each parent shall keep the other parent informed of:
16.1. The names and addresses of any treating medical, dental or other allied health practitioners that treat the children and provide such authorities as the practitioner may require to provide the other parent with information about their treatment of the children;
16.2. The time and dates of any medical, dental or other allied health appointment and each parent is at liberty to attend such appointment.
17.In the event that any medical prescriptions are required, and the prescribed times carry over to the other parent with changeover, that either the medication or repeat of that medication be supplied to the other parent at the time the children are handed over.
18.That each party is restrained from denigrating the other party in the hearing or presence of the children, and will use their best efforts to retrain any third party from denigrating the other parent in the presence or hearing of the children.
19.Both parties are restrained from discussing these proceedings with the children or in the presence or hearing of the children.
20.Both parties are permitted to liaise directly with the children’s school and sporting bodies relating to weekend activities and receive information, newsletters, school reports and school photographs.
21.Neither parent shall enrol the children in any extra-curricular activities that occur on a weekly basis without the other parent’s consent, which consent shall not be unreasonably withheld.
22.The parties are prohibited from changing the children’s schools without express written consent from both parties or an Order of the Court.
23.That the wife’s application for spouse maintenance is dismissed.
Pursuant to her document titled “Lewis Proposed Minite (sic) of Order ICL (003)” and emailed to Chambers on 16 September 2020, the ICL proposed the following orders;
1.That the Children X born … 2003, Y born … 2008 and Z born … 2010 (“the Children”) live with the Mother Ms Lewis (“the Mother”).
2.That for the purposes of communication, the Father be permitted to contact Y and Z via email no more than once per week and the following shall apply:
a)Within 7 days of the date of these Orders the Mother shall create an email address for both Y and Z and advise the Father’s solicitors of the email addresses forthwith;
b)That the Father be restrained from discussing with Y and Z any matters concerning X or the Mother;
c)That the Father be restrained from denigrating the Mother or X;
d)The Mother use her best endeavours to encourage Y and Z to access the emails received from the Father;
e)That the Mother use her best endeavours to ensure that Y and Z do not discuss or make X aware of their communication with the Father.
3.That without admissions, the parties shall within 14 (fourteen) days of the date of these Orders do all acts and things to enrol in a recognised post separation program such as B Program through E Service, C Program through F Service or D Program through G Service and provide evidence of such enrolment to the Independent Children’s Lawyer and thereafter upon completion, provide evidence to such to the Independent Children’s Lawyer.
4.That without admissions, the Father shall within fourteen (14) days of the date of these Orders enrol in an anger management course, complete the same within a reasonable time, and provide a certificate of completion to the Mother’s solicitor and the Independent Children’s Lawyer.
5.That the Mother continue to attend upon her treating psychologist and do all acts and things to implement any recommendations of such psychologist.
6.The Father is at liberty to forward Y and Z a letter/email/card/gift on the Child’s birthday, Easter and Christmas to the Mother’s postal address. The Mother shall notify the Father’s solicitor in writing of any change of postal address within 7 days of such change.
7.The Father is at liberty to contact the Children’s school to ensure they receive a copy of school reports, photographs and newsletters.
8.Each party be restrained from discussing these proceedings or the issues raised in these proceedings with or within the presence or hearing of the Children.
9.That the Father be restrained from attending the Children’s school unless by invitation of the school.
10.For the purposes of Order 9 above, the Father shall not approach the Children or otherwise make his presence known to the Children unless specifically requested by the school, teachers and/or school counsellor.
11.That the parties be restrained from denigrating the other parent or any other future partner or family member in the presence or hearing of the children and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence or hearing of the Children.
…
16.That leave be granted to the Independent Children's Lawyer to relist the matter in the event of non-compliance with these Orders upon the giving of seven days written notice.
17.That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to the Single Expert and that the fees in respect of that photocopying be waived.
18.That leave be granted to the Independent Children’s Lawyer to provide copies of all documents deemed by the Independent Children’s Lawyer to be relevant, including but not limited to Orders made, and Memorandums and Reports prepared in the proceedings to X’s treating psychologist Ms. H.
19.The Independent Children’s Lawyer be the person to explain the above orders made by the Court to the Children and the Mother forthwith ensure the children have an appointment with the Independent Children’s Lawyer, as requested by the Independent Children’s Lawyer.
The ICL also sought detailed orders for the appointment of a Single Expert to prepare a family report pursuant to Division 15.5.2 of the Family Law Rules 2004 (Cth). It is unnecessary to set out that part of her proposal. Orders for the appointment of Dr LL as Single Expert, with the parties to pay the costs in the first instance from funds held on trust with the mother’s solicitor, were made by consent on 16 September 2020.
Material relied upon
The mother relies upon the following documents:
a)Her Application in a Case filed 20 April 2020;
b)The Notice of Risk filed 20 April 2020;
c)Her first affidavit filed 20 April 2020;
d)Her second affidavit filed 30 April 2020;
e)Her third affidavit filed 10 September 2020;
f)The affidavit of Ms PP filed 20 April 2020; and
g)Her Financial Statement filed 10 September 2020.
The mother provided a Case Outline on 14 September 2020, dated the same day, and provided further written submissions in relation to her spousal maintenance claim on 20 September 2020.
The mother submitted a tender bundle on 11 September 2020 which was marked Exhibit 1, and further tender bundle on 24 September 2020 which was marked Exhibit 2.
As outlined above, the mother additionally filed an Application in a Case and accompanying affidavit on 6 October 2020, which she relies upon.
Following the re-opening of the matter, the mother additionally filed further Written Submissions titled “SUBMISSIONS FOR THE RESPONDENT MOTHER”, dated and filed 12 November 2020. These submissions include reference to the updated subpoena material, as well as two annexures.
The father relies upon the following documents:
a)His Response to an Application in a Case filed 26 May 2020;
b)His first affidavit filed 1 April 2020;
c)His second affidavit filed 18 May 2020;
d)The affidavit of Mr J filed 17 April 2020;
e)The affidavit and related undertaking of Mr K filed 22 September 2020; and
f)The affidavit and related undertaking of Ms L filed 22 September 2020.
The father provided the Court with a Case Outline, dated and emailed 11 September 2020.
The father also provided the Court a tender bundle on 11 September 2020 and an updated tender bundle on 16 September 2020.
The father also relied upon documents emailed by Ms Christie SC on 16 September 2020 in Response to the ICL’s proposal.
The father additionally filed written submissions in relation to the mother’s spousal maintenance claim and in relation to X’s mental health, as ordered, on 23 September 2020, together with a further tender bundle which was marked Exhibit E.
In line with the schedule following the re-opening of the matter, the father filed submissions and a further tender bundle on 4 November 2020, which have been accepted into evidence and marked Exhibit F.
The ICL made reference to the following documents produced under subpoena in her Case Outline, but ultimately tendered only a small selection:
a)Documents produced by NSW Police;
b)Documents produced by NSW Department of Community and Justice;
c)Documents produced by N School;
d)Documents produced by P Medical Centre;
e)Documents produced by Mental Health Service – Q Hospital;
f)Documents produced by R Service;
g)Documents produced by S Health Centre;
h)Documents produced by Suburb T Child and Mental Health Service.
In addition, both parties, as well as the ICL, sought to rely upon the Child Inclusive Conference Memorandum dated 15 July 2020 and referred to below as Exhibit C.
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
ICL 1
Minute of Proposed Orders emailed to Chambers on 16 September 2020
ICL
ICL 2
Tender Bundle of the ICL emailed to Chambers on 16 September 2020
ICL
A
Father’s Original Tender Bundle filed 11 September 2020
Father
B
Father’s Updated Tender Bundle provided to the Court on 16 September 2020
Father
C
Child Inclusive Conference Memorandum dated 15 July 2020
Father
D
Documents emailed by Ms Christie SC on 16 September 2020 in Response to the ICL’s proposal
Father
E
Additional Tender Bundle filed on 23 September 2020
Father
F
Additional Documents including submissions and a further tender bundle emailed 4 November 2020
Father
1
Tender Bundle filed 11 September 2020
Mother
2
Additional Tender Bundle 24 September 2020
Mother
3
U Company Pay Advice of the father dated 01.09.2020 – 30.09.2020, emailed by the mother on 16 September 2020
Mother
4
V Bank Statement of the father for the period 01.04.2020 – 30.06.2020, emailed by the mother on 16 September 2020
Mother
The Law –INTERIM HEARINGS
The approach in Goode & Goode
The Full Court of the Family Court of Australia in Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422; [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application. These are well known and do not need to be set out in full. I emphasise the following:
a)Identifying the competing proposals of the parties;
b)Identifying the issues in dispute;
c)Identifying any agreed or uncontested relevant facts;
d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
k)Even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Factual determinations at interim hearings
It is important for the parties to understand the limitations of an interim hearing. The Full Court has established a number of principles which make this clear:
a)The procedure for making interim parenting orders is an abridged process where the scope of the enquiry is “significantly curtailed”. At an interim hearing the Court’s determination is based only on affidavits read, documents tendered and submissions of the parties. There is no provision for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness. Interim hearings and consequential orders are “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” so a conservative approach is adopted, and findings made at an interim hearing should be “couched with great circumspection”: Marvel & Marvel [2010] 43 Fam LR 348 at [120], [122]; SS & AH [2010] FamCAFC 13 at [88].
b)Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case. The Court looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future: Goode & Goode (supra) at 80,901; Salah & Salah (2016) FLC 93-713, at [36].
c)Intuition can play a part in decision making about children, and the intuition involved is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. Merely because the facts are in dispute that does not mean the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue: SS v AH (supra) at [100]; Marvel & Marvel (supra) at [123]; Eaby & Speelman (2015) FLC 93-654 [2015] FamCAFC 104 at [18]; Salah & Salah (supra) at [39]-[42].
Legislative framework and case law
Despite the truncated nature of an interim hearing, the legislative pathway must be followed.
The best interests of a child are the paramount consideration: s 60CA of the Family Law Act 1975 (Cth) (“the Act”).
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[3]
[3] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The weight of authority in this Court is that if the presumption is applied, the Court is required to make an order for equal shared parental responsibility: Damiani & Damiani(No. 2) [2009] FamCAFC 215 at [133], [134]. Where the presumption applies, it conditions the Court’s power to make parenting orders, including enlivening s 65DAA: MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) FLC 93-537; (2013) 48 Fam LR 651; [2013] FamCAFC 48 at [16], [17].
The presumption does not apply if there are reasonable grounds for the Court to believe that a parent of the children has engaged in abuse or family violence: s 61DA(2) of the Act. The Full Court has made clear that any finding of family violence satisfies the expression “reasonable grounds to believe” in s 61DA(2), preventing the application of the presumption. There is no residual discretion: Robertson & Sento [2009] FamCAFC 49 per Finn J at [13]; Boyce & Boyce [2015] FamCAFC 60 at [21].
If s 61DA(2) is not engaged, the application of the presumption is mandatory except in two situations. First, In the case of an interim hearing the presumption does not apply if the Court considers it inappropriate: s 61DA(3) of the Act. I note here that if no order is made allocating parental responsibility the parents will continue to have joint and several parental responsibility: s 61C. Section 61DA(3) is not to be applied in a broad exclusionary manner: Goode & Goode (supra). The question of what is appropriate in the circumstances will ordinarily be answered substantially by an assessment of the considerations set forth in s 60CC(2) and (3). I turn then to consider those subsections.
The second is where it is rebutted by “explicit and cogent reasons” which satisfy the Court that it would not be in the best interests of the children for their parents to have such equal shared parental responsibility: s 61DA(4); Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133 at [57]; [61]. Those reasons are to be found in the consideration and discussion of the factors in s 60CC(2) and (3) of the Act.
The best interests of the child
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in s 60B of the Act. In considering the role to be played by these objects and principles in the determination of parenting orders I will follow what the Full Court said in Maldera & Orbel (2014) 52 Fam LR 24; [2014] FamCAFC 135 at [74]-[75].
In a judgment on an interim hearing, it is mandatory to consider, but not necessary to discuss, each and every consideration in s 60CC in coming to a determination about what is in the best interests of the child. What is required is a consideration, in a particular case, of the relevant matters which the case presents: Crouper & Mitchell [2014] FamCAFC 246 at [23]. I approach the task of assessing the primary and additional considerations in s 60CC, guided by what was said by the Full Court in Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 at [47]-[50]:
As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
I will undertake the determination of the interim issues in accordance with this approach. As will become clear, the evidence and argument of the parties placed unavoidable emphasis on risk factors, the tension between the positon of X and that of his sisters, and the maintenance of the relationship between the father and the girls.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” set out in s 60CC(2) of the Act:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in s 60CC(2), the Court is to give greater weight to the consideration in paragraph (b).[4]
Section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child's parents
[4] See s 60CC(2A) of the Act.
A “meaningful relationship” as one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 [2007] FamCA 520; McCall & Clark (2009) FLC 93-405 at [132] to [133]) (“McCall”). A “prospective approach” is the preferred approach to s 60CC(2)(a) requiring the Court to consider and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118] – [119].
While the father did not accept X would derive no benefit from a meaningful relationship with him, he did not press for any interim orders for X to spend time with him. There was no dispute that the relationship between X and his father is presently at a very low ebb. On the available evidence no sensible view can be formed at present on the how the relationship between the father and X can be supported prospectively by any orders of the Court.
The father argued that the girls have a meaningful relationship with him, and would benefit from prospective and continuing a meaningful relationship with him, but that any such relationship is being compromised by the mother withholding the girls.
The mother did not expressly deny any benefit to the girls from a meaningful relationship with the father. Her argument was that at present they should spend no time with the father because of allegations of risk, including the risk that, if they did spend time, X may respond with extreme behaviour, including self-harm or homicide.
For the purpose of the interim hearing, absent the other factors to be discussed, I am satisfied the girls would benefit from a continuing meaningful relationship with the father. The question is whether this is outweighed by extremely difficult questions about risk of harm arising from the many problems afflicting their brother X, and his responses if they spend time with the father, to which I now turn.
Section 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The primary question for interim purposes was directed to the second primary consideration, namely, whether there exists on the evidence a need to protect the children, or any of them, from physical or psychological harm from being subjected to or exposed to abuse or family violence. As between the primary considerations, greater weight is to be given to this consideration: s 60CC(2A) of the Act.
As to s 60CC(2)(b) of the Act, the terms “abuse” (see s 4 of the Act) and “family violence” (see s 4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence: s 4AB(3) of the Act. The Act provides in s 4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
There is a well-recognised distinction between proving that any incident of past abuse or family violence has taken place, and proving the existence of a risk which may be realised in the future.
Section 60CG requires the Court to ensure that, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, a parenting order does not expose a person to an unacceptable risk of family violence.
In Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 (“Bant”) the Full Court stated the law relating to unacceptable risk as follows at [38]-[41]:
38. In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
39. It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue”, namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B [1993] FamCA 143; (1993) FLC 92-357).
40. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at page 218:
151....Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. ...
41. As long ago as 1995, in N and S and the Separate Representative [1995] FamCA 139; (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
In Bant at [51] the Full Court also made clear that a conclusion of risk is formed by a consideration of all aspects taking into account the necessary elements of prediction and assumptions about the future to which the Court spoke in CDJ v VAJ and should be based on all of the facts and circumstances without the need to analyse each fact or circumstance to see whether that particular fact would support the conclusion of risk.
The ability to analyse facts and circumstances is circumscribed at an interim hearing in the manner set out above. It is important however, as the mother submitted, to remember that serious allegations of risk cannot be ignored simply because they are disputed.
According to the mother, the father was the persistent perpetrator of family violence, including: physical, emotional and sexual abuse, as well as demonstrating coercive and controlling behaviours, which began in 2004.
Some examples will indicate the nature of the allegations. In or around 2005 or 2006, the mother claims that the father caused her to fall and hit her head on a wall after forcefully taking her bag out of her hand. She claims this caused her a headache and subsequent vomiting. In or around late-2010, the mother claims that the father forcefully held her against a brick wall, whilst she was holding Z, and in the view of X. According to the mother, X was forced to break a stool by throwing it across the room, causing the father to let go of her. Later, in early-2011, following a fight between the parties about a mark on their bedspread, the mother claims that the father physically hit her on the right side of the head, with his left hand, whilst she was holding Z. The mother says she reported this incident to the police, however is unsure what action was taken. Similar extensive accusations are outlined in the mother’s affidavit filed 20 April 2020. Additionally, the mother claims that the father was controlling of her, often preventing her from leaving the house. She claims in particular that he would hide her keys and wallet from her in order to force her to remain in the home.
The mother made allegations of sexually degrading acts perpetrated on her by the father consistently through the marriage. She alleges that on one occasion in November 2015, after the mother had been admitted to hospital with a painful abdominal condition, the father forced her into non-consensual intercourse.
The mother also alleges X witnessed violence at the hands of the father. She claims that on one occasion she attempted to retrieve her keys from the father. The parties started “grappling”, resulting in the mother being thrown on the laundry floor, and with the father’s neck being scratched in the process. The mother described X as “extremely frightened”, “yelling at [the father] to stop” and “physically shak[ing]”.[5] The mother also claims that X heard a sexual assault on her by the father while on holiday in Queensland on about 10 January 2019.[6]
[5] Mother’ Affidavit filed 20 April 2020, [57]–[58].
[6] Ibid, [130]–[135].
The father denies all allegations of family violence towards the mother.
The mother further alleges that X has been subject to physical and emotional abuse at the hands of the father.
In an assessment dated 29 January 2020, X is recorded as recalling that in Year 4 the “father [was] picking him up and putting him over [his] shoulder to turn him around on [the] bed, he witnesses [the] father pushing mother into [the] Wall while holding [his] baby sister in her arms. He also recalled [the] mother locking herself in [the] bedroom after this incident and leaving him out with [the] father and feeling confused as to why he couldn't be with her.”[7]
[7] Exhibit ICL 2, p. 2.
Another specific incident involving X which the mother emphasised in her evidence was said to have occurred on 17 September 2016. According to the mother, the parties and children were visiting the former matrimonial home, which they had just settled on. Whilst there, two lollies fell out of the father’s pockets, and X ate those lollies. In response, the father allegedly became enraged and approached X, eventually choking and shaking him. This continued for 10 to 15 seconds, according to the mother, and occurred in the presence of the girls.
X also recounted a version of this incident to the Family Consultant, stressing that the father had “strangled” him and “abused the fuck out of [him]”.[8] X also repeated this narrative to his mental health professionals. According to his mental health records, the father was a frequent perpetrator of family violence. He described the father as “verbally aggressive” and “physically violent”, including having “strangled” him on one occasion.[9] He recalls having asked the mother to “leave” the father from the time his was in Year 5.[10]
[8] Child Inclusive Memorandum dated 15 July 2020, [14].
[9] Ibid.
[10] Ibid.
The father has denied these claims in their totality.
In considering these allegations about the conduct of the father towards both the mother and X, I take account of the fact that, although in her affidavit the mother says she and the children “escaped” on 31 January 2019, almost immediately she agreed for fortnightly visitations between the father and the children. After separation in January 2019, there was no dispute that the mother agreed to X and the girls spending significant and regular time with the father, although in her affidavit dated 20 April 2020 at [62], the mother says that “X hasn’t had much to do with Mr Lewis since March 2019”. The girls continued to spend time with the father during 2019 but X ceased seeing his father in November 2019. The mother unilaterally stopped the girls spending time with father in February 2020.
There is also a COPS report, dated 22 February 2020, which records that the mother attended NN Police station on 22 February 2020, after she received a “notification that the children could be removed from her care after multiple mandatory reports…”.[11] The mother told police about the father’s alleged physical violence towards X in 2016 but disclosed no physical assaults on the girls and no fears for her own safety. The report states:
The victim also disclosed she has absolutely no fears for her safety and only fears for the safety of her children which remains unsubstantiated as there is no evidence to suggest Y and/or Z are at risk of harm. Of note, the victim did not disclose any physical assaults upon Y or Z by the PN in the past, nor have there been any threats of harm towards them by the PN. Police are of the belief that the victim is fearful of her children being removed and wishes to appear as though she is making a conscious effort to protect her children to prevent this from occurring. Of note, no mandatory reports have been received by Police in relation to concerns regarding the children’s well being or safety.
[11] Exhibit B, p. 1.
Later the report continues:
There have been no threats or indication of harm towards Y or Z to warrant an AVO…Clinical notes do not disclose anything more recent to base an AVO application upon, nor is there any contact between the victim or X with the PN that causes them to be fearful for their safety…The victim states, “Mr Lewis has never been physically aggressive towards Y or Z but are scared of him yelling all the time. Z is scared at times because she sees Mr Lewis being bossy and angry”.[12]
[12] Ibid, p. 2.
The mother relied upon an affidavit sworn 30 April 2020, in which she disputed the manner in which the police recorded their interviews with her on 22 February 2020. She states that she was given notes made by one police officer during the interviews. She also signed a police statement, but claims she did so without reading it, and it was misleading to the extent it records the mother stating “…I have no immediate fears for my own safety”. The mother denies this reflected accurately her state of mind at the time. Neither the notes nor the statement was put in evidence by the mother.
The father says he does not know why the mother stopped his time with the girls in February 2020. The mother gave evidence that she decided to “stop time between Mr Lewis and the children”, on the basis of one of X’s health professionals who allegedly told her: “based on the information that I have learnt from X, I would not be giving any time between Mr Lewis and your girls”.[13] It is not clear what the information from X referred to. However, there is no reason to think it was information about abuse of the girls by the father, in light of what the mother told police on 21 February 2020, and the absence of any evidence of such abuse towards them otherwise. It may have been the information about X’s attitude to his father, or what X told health professionals after a self-harm incident on 1 January 2020, referred to below at [100] and [101]. However, the mother does not make clear that she stopped time between the girls and their father in February 2020 because of X threatening to harm himself or the father.
[13] Above n 5, at [193].
In any event, I am not persuaded at an interim stage that it is possible to find the mother ceased the girls’ time with the father because she held any fears for their safety directly from him. The undisputed evidence of the mother’s conduct, such as allowing the children to spend time with the father after separation throughout 2019, does not unequivocally support the mother’s contentions about fears of abuse and some of the objective documentary evidence, set out above, is plainly inconsistent with her case.
I do not ignore the mother’s allegations against the father, but I am unable to make any interim finding about her allegations of family violence or sexual abuse, and I am unable to find that the mother has established at an interim stage that the father presents any direct risk to the girls.
This is a most unusual case because X’s mental health problems are a separate source of risk which affects the girls. It is beyond doubt that he is a very disturbed young man and has suffered mental health problems for many years. The mother submitted X’s drug use and suicidal ideation dated back to primary school. The father claims X’s mental health problems date back to a church summer camp in 2016/17 when he started drinking and smoking marijuana. The evidence supports a finding of long term and continuous mental health problems.
In particular, X has had a long term suicidal ideation. For example, a referral from Dr AA on 8 March 2017 to R Service records that X reported “bullying at school”, and suicidal ideation “for 9/12”, which appears to mean 9 of the past 12 months.
There was evidence that X’s behaviour deteriorated at school in the second half of 2019. He was abusive towards a girl on the school bus and engaged in inappropriate sexual behaviour, including exposing his penis to a number of school pupils in August 2019. In an email dated 23 August 2019, the Deputy Principal of N School states: “[t]his comes after lots of poor and intimidating behaviour from him. No remorse at all”.[14] Eventually, X was expelled from N School. The Consultant Notes, dated 1 January 2020, contained the following information (Ex 2, 8):
X was seen by Clinical Psychologist, Mr BB, in 2018, for 5 sessions, however did not find this helpful. History of bullying reported by mother. Some intervention with school counsellor, however, X was recently expelled from N School for "mooning" the whole school on the oval (see notes by Psychiatry Registrar, Q Hospital). Now attending CC School. Enjoys sports and is trying to become a professional referee.
[14] Above n 11, p. 12.
Importantly, the mother gives evidence that X has had a strong adverse reaction to the girls spending time with the father. According to the mother, X said to her in December 2019: “so you’re going to let him fuck up my sisters like he fucked me up?”,[15] when the girls were still spending time with the father each alternate weekend as well as each Thursday night in the intervening week. The mother claims that on 1 January 2020, when the girls went to spend time with the father, X self-harmed “for the first time”.[16]
[15] Above n 4, at [172].
[16] Ibid, [180].
However, Consult Notes dated 2 January 2020, the following day, subpoenaed from Suburb T Community Health, do not make any reference to X connecting suicidal ideation with his sisters spending time with their father:
16 year old male brought into hospital by mother after trying to "hug her goodbye" with plans of suiciding by jumping off a cliff. Long history of past exposure to domestic violence, in particular, allegedly perpetrated by father towards mother with parents having separated one year ago. Recent stressors include a break up with his girlfriend of 9 months, as well as worsening depression. Symptoms of low mood have been longstanding (approximately 4 years), however, self-harm and more acute suicidal ideation occurring (sic.) in the last 5 weeks.
…
X reports four year-long low mood with ongoing suicidal ideation. He describes feeling "numb" a lot of the time and "faking it until you make it", that is, pretending to be happy in front of other people. He has recently felt worse and has had intent to act on his suicidal thoughts in the context of breaking up with his girlfriend. Specifically, he sat on the edge of a cliff for 1 hour 5 days ago, thinking about jumping in Location DD, and threatened to do so again last night. He describes that a single negative thought can make him feel suicidal, but this is much better when he is distracted by his now ex-girlfriend, or by sports refereeing. He reports being really keen to attend a tournament on the weekend (returning Jan 8th) and believes he can talk to his refereeing boss who knows about his mental health difficulties. He describes not having a close relationship with his mother and not wanting to tell her about his mental health problems. He has one cousin, Ms EE, whose mother suicided 8 years ago, and whom he feels close to. He states that his ex-girlfriend is also a professional sports player and he is reminded of her a lot.
On the other hand, in another assessment dated 29 January 2020, X expressed concern about his sisters in the father’s care. He is recorded as saying:
Describes walking around streets with hands in fist. Sometimes fantasises about killing father with knife or punch him but has not seen him, thinks that he would then be put in jail because he would give himself up. Initially went on contact with father to keep an eye on sisters. Wanted to know he would not hurt them. Has not been since. Does not think he treats them well.[17]
[17] Exhibit 2, p. 4.
The subpoenaed material shows X has engaged in petty criminal conduct and consistent polydrug use. It shows X has consumed 2 - 5g THC daily,[18] admits to recent cocaine use, IV heroin use “2 weeks ago”,[19] meaning September 2020. He has experienced hallucinations and paranoia.
[18] Exhibit F, p. 85.
[19] Ibid.
The medical evidence shows he has been diagnosed with complex Post-Traumatic Stress Disorder, Bipolar Disorder and Major Depressive Disorder. There is no doubt that X presents as a highly volatile and mentally fragile youth, with a long record of self-destructive behaviours.
Specifically, the mother submitted X has tried to take his own life at least four times. She gave evidence that on 29 May 2020 “X stabbed himself in the right thigh when he was at a clinical appointment with his psychologist, psychiatrist, myself and a doctor, at Suburb T Health Service. He ran out of the appointment, and he was found in a stairwell bleeding”.[20] The subpoenaed material records that he told health professionals in the first half of 2020 that he planned to kill himself in June 2020. This did not happen. According to the mother he was admitted to FF Hospital for ten (10) days from 11 June 2020 to 19 June 2020, to prevent him following through on this plan.
[20] Mother’s Affidavit filed 10 September 2020, [5].
But he has continued to contemplate suicide and actually self-harmed. According to the mother’s evidence:
At around 1.00 am on 20 August 2020, X slit his left wrist with a knife at home, and he did approximately ten (10) other cuts to his arm. He originally refused to be taken to hospital, but eventually allowed me to take him. The doctor said that he needs to see a surgeon, however after X’s continual refusal to see a surgeon, X made the doctor stitch the cut. He has damaged a radial nerve, and the numbness continues today.
On 18 September 2020, a GG Psychiatry review records X “got rope last week and walked to Location DD but stopped himself before he got to the cliffs and instead started bashing up cars” and used heroin and was thinking of “overdosing on it but changed his mind…”.[21]
[21] Above n 18, p. 83.
In July 2020, X told the Family Consultant that the father had “fucked [his] whole life up”, and that he had plans to “kill his father and himself” as recently as June 2020, however he had delayed those plans pending the outcome of these proceedings. He made it clear that his goal was to ensure that the father spent no time with the girls as he is “capable of anything” and therefore the girls would not be safe in his care.
In September 2020, X stole his grandfather’s car and drove it into a wall, and he “walked to the car with passive suicidal ideation”.[22] This incident prompted the mother’s application to re-open the interim application referred to above. Following the incident, X claimed that he had driven the car to the father’s home, prior to crashing, with bullets in his possession, although he had no gun. The mother presently has possession of these bullets.
[22] Ibid, p. 73.
Documents from the HH Inpatient Unit (“HH Unit”) referral, dated 25 September 2020, also record X as having suicidal and homicidal ideation, with thoughts of killing his father.[23] His discharge notes record him saying: “I should have killed myself ages ago” and “I should have killed myself on the 10th of June”.[24] In a Progress Note, dated 25 September 2020, X is reported as saying on the night he crashed his grandfather’s car he thought of overdosing on heroin, but “says it was too much trouble and flushed it all down the toilet”.[25] The Progress Note also records that X “[d]oes not want to live and would be happy if he died…Has been living for Mother and sisters – does not want to cause them grief. Wants to kill father so that he is not leaving mother and sisters at his mercy when he is dead”.[26]
[23] Ibid, p. 67-68.
[24] Ibid, p. 69.
[25] Ibid, p. 87.
[26] Ibid, p. 87.
On 1 October 2020, X was admitted to the HH Unit on a voluntary basis. He remained in this unit until 15 October 2020, when he was released.
It is the mother’s argument that X’s suicidal and homicidal ideation, even on an interim basis, is expressly connected by X to his father and the outcome of these Court proceedings. More specifically, she argues that X perceives he has been abused and damaged by his father and that his sisters are at risk from the father. The mother argues that because of these perceptions the possibility of the girls spending time with the father could be a “trigger” for a catastrophic response by X, either trying to kill, and possibly succeeding in killing, himself or the father or both. The mother contends that the psychological damage to the girls and to X himself, as well as physical harm, would be enormous if any of these things happened. She argues the risk is of such magnitude to justify the girls continuing to spend no time with the father, at least for the present. This risk, argues the mother, is greater than the risk to the girls in not seeing their father for an interim period. The ICL supported this position, pointing out that the Court should proceed cautiously at an interim stage, especially in the face of such a volatile and extreme presentation in X’s mental health.
The father denies X’s allegations against him entirely. He refers to X’s severe mental health condition, drug use, and his past inconsistent statements to police to suggest that X’s narrative should not be accepted.
I accept that X’s serious mental health problems and self-destructive behaviours constitute reasons for scepticism about the truth of his disclosures and allegations about the father, in the sense that they may not refer to incidents which actually took place or may reflect a distorted or exaggerated memory. The father pointed out that although X has not spent any time with the father since November 2019, his suicidal ideation, drug use and self-destructive behaviour has not abated during 2020, while in the mother’s care. I agree that the evidence shows that throughout 2020 X’s self-destructive behaviours have intensified. He also pointed out that X’s mental health problems were evident not only prior to separation but during the time after separation when he had some contact with his father, prior to November 2019.
However, although they have apparent force, for present purposes I think these observations are presently not to the point. As the father also submitted, the evidence is clear that X is aware of these proceedings and some, at least, of his behaviour this year is in part a response to the Court proceedings. It may be that X’s perceptions of his father and risk to his sisters in the father’s care are entirely irrational and find no reasonable basis in fact. However, at the moment, the point is that the evidence, even at an interim stage, leaves no room for doubt that X nurses these perceptions about risk to the girls in the father’s care and the father’s application is for the girls to spend time with him. It was not argued that X did not hold these perceptions. I find that it is more likely than not, at an interim stage, that X genuinely believes his father has been an abuser of his mother and of himself, and that his sisters will be at risk if they spend time with the father. It is this genuine belief which may be the stimulus to calamitous action by X and a source of risk both to him and the girls. In X’s mind there presently exists a morbid and destructive nexus between the outcome in these proceedings regarding his sisters and incitements to his future conduct.
However, the father argues that there are other important considerations which weaken the stark characterisation of X as a source of risk by the mother, and the ICL, and which of themselves constitute different and countervailing risks to the girls.
The thrust of the father’s argument is that the position taken by the mother and the ICL constitutes an unhealthy focus on X and his problems to the exclusion of a balanced and measured consideration of the best interests of the girls. The father contends that the mother’s argument fails to take account of the impact on the girls, and their relationship with their father, from an extended break in contact with him. This is likely to have an adverse impact on them developing a sense of identity and wellbeing.
The mother argues that if any orders are made for the girls to spend time with the father X will find out. However, as the father submitted, this information could only come from the mother or the girls. The father now has no contact with X. The father also put in issue the extent to which X is actually present in the home of the girls. Some of the documentary evidence suggested X was not living in the same dwelling as the girls, at least continuously. However, I am not able to find for interim purposes that X would not find out if orders were made for the girls to spend time with the father. Even if orders were made for the mother not to discuss the proceedings with X, there is no way to prevent the girls from speaking to X and telling him that they see the father.
The mother also submitted that despite the grim evidence of X’s history of mental health problems, there are now some reasons for cautious optimism about his trajectory. The evidence makes clear that X is involved in playing and refereeing sports. This is clearly positive for him, and provides some structured activity from which he benefits.
There are also signs that X has turned his mind from a fixation on destructive behaviours and entertained more constructive thoughts such as engaging in a TAFE course. On 15 October 2020, Progress Notes from the HH Unit records X saying: “he is future focused, will readily seek help and willing to work on his safety plan” and “[h]is protective factors are his family, mum and 2 younger siblings”.[27] The notes also record that:
X's enrolment Into a Certificate III via TAFE, despite him being-under age, and they will work on an innovative solution around practicum for him, It may be that X completes the units for both the Certificate III and the Certificate IV that he can, and then he completes both the practicums after he turns 18. Or, they will look at a placement where he can be appropriately supervised. X was appreciative of the support letter I shared with him and expressed continued commitment to this plan and expressed a sense of hope about having something that would fill his days and give him a sense of purpose, helping to distract from and stop him feeling hopeless when he experiences the flashbacks [about abuse].[28]
[27] Ibid, p. 142
[28] Ibid, p. 143.
I take account of this evidence but note that only time will tell if these positive indications will develop into a more concrete and healthy outcome for X.
The father also points out that the medical evidence discloses that X and the mother have a problematic relationship. In the Consult notes, set out above at [102], X is recorded as already saying he does not have “a close relationship with his mother”. The assessment dated 29 January 2020, already mentioned above at [102], records X saying that he:
Does not want to see mother much - has poor relationship. Does not trust her after she disclosed to his exgirlfriend that he had been suicidal and in hospital. Also does not trust her around her involvement in his mental health. He stated that he is so angry at her … and has not forgiven her for not leaving father.[29]
[29] Above n 17, p. 4.
The mother’s own difficulties coping during 2020 seem to have further undermined X’s relationship with her. By 18 September 2020, the relationship between X and the mother was described as “severely ruptured”.[30] X told mental health clinicians at the HH Unit, “he doesn’t feel his mother is able to function as a support for him. Very nervous about meeting with mother” – “I don’t want her to be a resource” “she’s not someone who I can trust and go to ever”.[31]X additionally said he “[f]eels his mother does not have mental capacity to deal with this, gave examples of crying and not coping mentally. X feels his mother’s anxiety is hard to deal with”.[32]
[30] Above n 18, p. 83.
[31] Ibid, p. 84
[32] Ibid.
The mother herself is clearly under considerable pressure. This is understandable. But the mother is the only parent to the girls at present, since they do not see their father. On 11 February 2020 in a referral from P Medical Centre she is described as “suffering an acute situation crisis on the background of domestic violence and recent attempted suicide of her son X”.[33] She is prescribed Valium, Temazepam, Lexapro and Olanzapine, panadeine and Noriday.[34] In Progress Notes dated 8 May 2020, Ms H, a clinical psychologist who has treated X, reported that the “mother is extremely dysregulated and her capacity to manage things is very low”.[35] In the same note there is a copy email from Ms H to the mother recommending she see a counsellor since she is “just surviving at the moment”. In the mother’s further tender bundle at page 25,[36] the records have X stating: “[h]is mother is very anxious and told him that she punched a wall”. The mother was encouraged to follow up on her own counselling, but declined the suggestion.[37] On 1 June 2020, X told his Psychologist “Mum won’t get help and has lied to him about seeking help”.[38] In her affidavit filed 10 September 2020 at [22]-[29] the mother herself gives evidence of extensive trauma, panic attacks and referral for psychological intervention. Apart from this, she gave little evidence about her mental health and present capacity to function as a parent, any current treatment, therapy or mental health support. I find the mother is struggling to cope as a parent. Bearing in mind the compelling evidence about the serious problems of X, I cannot be satisfied on an interim basis that the mother’s difficulties coping do not present some risk to the girls in her care.
[33] Exhibit 1, p. 2.
[34] Above n 18, p. 266.
[35] Exhibit E, p. 6.
[36] Above n 33, p.2.
[37] Ibid, p. 34.
[38] Ibid, p. 45.
The state of the domestic circumstances in which the girls presently live was not made clear by the mother. It is of some importance to an assessment of risk. An important question is how the behaviour of X is affecting the girls and is an issue upon which the Court would have expected the mother to give some clear evidence.
In her affidavit filed 10 September 2020 at [21] the mother states:
Since ceasing time with Mr Lewis, Z and Y have begun to let their true personalities show; they have stopped constantly saying sorry for every little thing that they do, they are talking back at me like a normal child does and they are generally more settled. Previously, when they were spending time with Mr Lewis, they were ‘people-pleasers’ and did or said whatever they needed to in order to make the people around them happy, and they dampened their personalities in order to not aggravate Mr Lewis in anyway. Y has recently represented her school in sports, and Z is on the Student Representative Council. They are doing amazing.
Putting to one side the way this evidence seeks to posit no contact with the father as the reason for the girls doing well, which I am unable to accept at an interim stage, I infer from this evidence that the mother contends that the girls are generally unaffected by X’s problems, at least to the extent that the girls have not been held back and are “doing amazing”. It is true the girls’ school reports in evidence, which cover 2019 and Semester 1, 2020, show they continue to progress reasonably well at school.
In oral submissions, the mother argued she should be commended for shielding the girls from X’s difficulties. I do not know what to make of this submission. The evidence shows that in 2020, X has been hospitalised in January, February, May, June, September and October. There is evidence the girls have feared for his safety: in a Progress Note dated 7 May 2020, Ms H, who has been treating X, records an incident when X was swearing and kicking doors and yelling at the dog. The document further notes “[h]e settled and came home and was able to speak with his sisters who were very afraid for him”.[39] This shows the girls have had some exposure to X’s problems which caused them anxiety. According to the subpoenaed material, X has “3-4 breakdowns per day” when home.[40] There was no dispute X often becomes agitated, punching walls and doors or banging his head against walls. The mother herself says at [20] in her affidavit filed 10 September 2020: “[a]t present, X has been continually banging his head against a wall and this usually happens daily.” She also states she has tried “to keep X at home as much as he will agree to”,[41] although the evidence suggests stays elsewhere quite frequently.
[39] The father’s submissions incorrectly cited this note as saying “who were very afraid from him”.
[40] Above n 35, p. 42.
[41] Above n 20, [15].
In light of this evidence, how the mother could have successfully shielded the girls since February 2020 from X’s daily wall banging, regular breakdowns, continuous emotional dysregulation and depressive mood, self-harm, visits to hospital, criminal activity, drug taking and other violent episodes, such as the car crash in September 2020, for over nine months, or from her own difficulties coping and her fractious relationship with X, was not explained. I am sure she has tried her best to do so, and may have limited such exposure, but I am unable to accept the girls have not been exposed to these sources of worry, pressure and tension. The evidence leaves little room for doubt, even at an interim stage, that there has been scant reprieve from X’s problems since at least January 2020. I infer that there is a real risk the girls are living in an atmosphere of frequent crisis in the mother’s household. The mother is to be commended for keeping up the struggle and persisting in dealing with X, and doing her best to provide a home for all her children. However, the best interests of all her children, not just X, are the paramount consideration.
The girls cannot presently enjoy any family time with their father. I infer it is also likely that X’s numerous problems dominate the remaining shreds of family life which the girls may try to enjoy with their mother. The fact that the girls appear to be holding up and getting on with their lives is not inconsistent with this inference. It is a credit to their resilience. But that does not mean they are not being exposed to some level of psychological damage. I am satisfied that for the girls to be placed in a home environment dominated by the constant crises created by their brother, with a mother who is struggling to cope, is itself a source of risk of psychological harm to them.
This conclusion lends force to the father’s argument that time with him would allow the girls some respite from the stressful home life with their mother.
I accept X is chronically mentally ill, so no likely end to his problems can be realistically envisioned. The father submitted if so “the relationship between the other children and their father cannot and should not effectively be put on hold for some undetermined and realistically lengthy period of time. Long periods of time without any contact between the girls and their father cannot be in their interests and cannot promote the meaningful relationship to which they are entitled.” There is force in this argument. Isolating the girls from their father indefinitely is likely to be adverse for them. I could not conclude it would not be adverse.
The further difficulty in this regard is that isolating the girls from the father simply removes one potential trigger for X’s mental health problems to express themselves in extreme behaviours. The evidence makes clear that even if the girls do not spend time with their father, X’s difficulties will not disappear. They have become worse even while the girls have not been seeing their father. The likelihood is that they will continue to plague the lives of the girls whatever orders are made by the Court.
What cannot be known at present is the extent to which X’s statements of suicidal or homicidal intention can be treated as an indication of likely future actions. It is true that the evidence shows X, while frequently threatening suicide now for many years, has never actually carried out his threat, despite some incidents of self-harm. Evidence of X’s own statements shows he has contemplated suicide a number of times, but resiled from the edge of abyss at the last moment, for example when he decided a heroin overdose was “too much trouble”. He has also expressed the desire to stay alive to protect his sisters and mother.
However, this cannot be taken as evidence that X will never carry out his threats. It may be that the many incidents involving X’s conduct over a long period are actually the stages of a slow escalation until he reaches a fatal crescendo. It is not possible to know at present. The point is the risk cannot be ruled out and must be taken seriously.
The evidence satisfies me that X’s homicidal ideation, and in part his suicidal ideation, are now connected to a desire to protect his sisters from the father whom he perceives as a threat, rightly or wrongly, and even if there are or have been other possible sources at earlier points in time. In light of X’s consistent drug use, violent and persistent erratic behaviour beyond appropriate boundaries, unresolved mental illness and self-destructive tendencies, I cannot find at an interim stage that the risk of devastating psychological damage to the girls, if orders are made for them to spend time with their father, from a successful suicide or homicide by X is other than real and serious. Future circumstances may arise which will undermine this conclusion. For example, if X enrols in a TAFE course and begins to focus on establishing his adult life, since he turns 18 in less than a year, an assessment of risk may be quite different. But at present this cannot be known.
A careful consideration of the evidence highlights the competing anxieties about risk in this matter. On the one hand, it is certain that the girls will suffer some detriment by being deprived of contact with their father, and by living with X’s constant problems and the crises they bring about. The longer this continues the greater the detriment is likely to be, but it is likely capable of amelioration or reversal over time. On the other hand, there is a less certain risk of harm occurring by X acting on suicidal or homicidal thoughts about the father, if time with the father is ordered, but if that risk is realised, the magnitude of that harm will be so much greater, could extend to X himself, and could be an irredeemable tragedy. Thus for interim purposes the Court is faced with a choice between redeemable or possibly irredeemable harm.
Additional considerations
The Court must have regard to each of the “additional considerations” set out under s 60CC(3) of the Act separately to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. I will deal with these considerations seriatim.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The girls are on the cusp of their teenage years; Y is 12 years old and Z is almost 10 years old. As a result, the father argues that their views should be considered with weight.
According to the Child Inclusive Memorandum dated 15 July 2020, both girls said that they missed the father. Z, in particular said that she “wants to spend time with him for, ‘about one hour a day’”, and describes the father as a “good Dad” with whom she would feel safe.[42] Y expressed a wish to spend “a few nights per fortnight” with the father, and feels safe in his care.[43]
[42] Above n 8, [15].
[43] Ibid, [16].
The mother gives consistent evidence that the girls say to her they do like seeing their father, they find him scary, bossy and angry. It is difficult to take this evidence at face value at an interim hearing. It is untested and inconsistent with the expression of views in the Child Inclusive Memorandum, and at an interim stage the Court should take account of the possibility that the girls are saying what they believe the mother wants to hear.
I find that the girls would like to spend time with their father. It was undisputed that X’s views are negative towards the father. The mother argues that ignoring X’s views in relation to the father, particularly in light of the optimistic outlook for X at present, would likely set back his mental health, treatment and progress.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
Whilst the ICL suggests that there is limited information presently available in relation to this consideration, I am satisfied the girls have a reasonably warm relationship with both parents, as evidenced by their views expressed to the Family Consultant, and more importantly for present purposes they have a sufficiently warm relationship with the father to want to spend time with him. However, it is clear that the relationship of the girls with their father is overborn by X’s many problems, and his destructive focus on the father.
X, in comparison, has a compromised relationship with the mother, and an extremely negative relationship with the father.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
The father argues the many problems of X suggest that time away from the mother’s home may be beneficial to the girls. There is some force in this submission. I accept that on balance that the girls would derive some benefit from a change to their circumstances which caused them to spend time with the father. But as made clear by the discussion under s 60CC(2)(b), this must be balanced against the risk posed by X’s response.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No party made any submission about practical difficulties.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Both parties question the capacity of the other to support the emotional needs of the children.
I have already discussed the extent to which the evidence suggests the mother is struggling to cope generally and to support X. As already pointed out, X himself does not feel that “his mother is able to function as a support for him” and is “not coping mentally”.
In addition, the father suggests that X has been involved in the Court proceedings and is acutely aware of what is happened, which suggests that the mother lacks some sort of capacity and insight.
The mother argued that criticism of her in light of Court events, her family violence allegations and X’s mental health condition, is “unfair”. The fairness of criticisms is not really to the point. The question here is objectively, at an interim stage, and in light of the fact the mother is presently the only parent in the lives of the children, what view can the Court form about her capacity to provide for the needs of all the children, including emotional and intellectual needs.
I have discussed above under s 60CC(2)(b) the evidence which suggests the mother is struggling to cope, and I accept this is likely to have some negative impact on her parenting capacity, of both the girls and X.
I am not persuaded that X’s knowledge of the Court proceedings clearly reflects poorly on the mother’s capacity to parent. Whilst she does not deny that X is aware of the proceedings, she points out that X is 17 years old and alleges he has been exposed to extreme violence in his life, which has caused him great concern about protecting the girls. There is evidence that, as a result, X’s mental health professionals have suggested giving him limited information about the proceedings, as it provides him something to focus on and something that would “give him hope that he can make a difference”. Whether this advice was or is appropriate, it is not unreasonable for the mother to have followed it.
According to the mother, the father sent X a text message in late 2020 which reads: “I have got you something for your birthday. Let me know how I can get it to you”.[44] This was despite the fact that the father was well aware of X’s wishes not to see the father and his mental health conditions. The mother argues this demonstrates the father’s lack of insight and inability to act in a child-focused manner. I accept there is some force in this submission. However, the father does not seek any time with X.
[44] Mother’s Written Submissions filed 12 November 2020, Annexure “B”.
I am not satisfied that this demonstrates the father generally lacks insight or lacks insight in relation to the girls. On the contrary, there is evidence that he wrote to them as well. Since they say they wish to spend time with their father, writing to them can been seen as child focussed.
I have taken account of the possible effect on the mother’s capacity of orders for the girls to spend time with the father: A & A (1998) FLC 92-800; (1998) 22 Fam LR 756, at 84,996, [3.29]; Helbig & Rowe and Ors [2016] FamCAFC 117 at [212]). I accept that if orders are made for the girls to spend time with their father, this is likely to cause the mother additional anxiety. However, the mother’s evidence does not allow me to reach a clear view about the extent of the impact upon her. I am unable to conclude the mother could be rendered unable to parent X or the girls.
The evidence satisfies that after separation until February this year, the father had a reasonable capacity to parent the girls.
At present the father has no capacity to parent X, because of X’s attitude towards him.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Despite the problems with X, their separation and the allegations by the mother against the father, I find both parents have a committed attitude to the responsibilities of parenthood.
While unable to from a clear view, the evidence persuades that the mother presently has difficulty promoting the relationship of the girls with their father. I have already found above under s 60CC(2)(b) that the girls would not be directly at risk from the father in his care.
(j) any family violence involving the child or a member of the child's family;
I have already referred to evidence of family violence above under s 60CC(2)(b). I have taken it into account.
(k) if a family violence order applies, …
There has not been an ADVO in relation to this matter.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is usually preferable to avoid further litigation, but I am not persuaded that in this matter it is clearly preferable at this stage. I emphasise that the decision reached in this judgment is only an interim decision. The circumstances of this case strongly indicates that the interim parenting arrangements may need to be reconsidered at a future date when the Court has the benefit of further evidence, particularly expert evidence.
(m) any other fact or circumstance that the court thinks is relevant
Prior to receipt and tender of the further subpoenaed material, the ICL submitted page 20 of her Outline of Case “in the absence of a Single Expert Report, it is difficult to determine what measures should be put into place to ameliorate the risk and potential devastating psychological harm that could eventuate given X’s volatile mental health particularly in circumstances where X has made multiple disclosures that he intends to kill the Father and himself if the court is to order that the Father spend time with his sisters.”
As mentioned above, Consent Orders were made in September 2020 appointing Dr LL as Single Expert Witness in this matter. Appointments have been scheduled with the parties on 22 March 2021. A report should be made available soon thereafter.
Consistently with their submission made before the further subpoenaed material was available, the mother and the ICL contend the fresh material has changed little and the Court should be extremely cautious and make orders for time with the father until this report is available.
I accept there is force in this argument. The outcome of Dr LL’s evaluation cannot be known at present. However, it is likely the Court will have greater insight into the family dynamics and the situation of the girls as well as X. The proximity of Dr LL’s report opens the possibility for the Court to have the benefit of expert evidence which may provide a basis to revisit interim parenting orders, if appropriate. The report may also provide a basis upon which to limit the time during which the girls have limited contact with their father. As already indicated, the circumstances in this matter strongly point to the exercise of caution at this stage.
Parental Responsibility
The father seeks an order for equal shared parental responsibility for all the children. This proposal is consistent with the application of the presumption, discussed above. The allocation of equal shared parental responsibility would enliven the statutory obligation for the Court to consider equal or substantial and significant time with each parent if reasonably practicable (s 65DAA) and for parents to consult over decision about major long term issues relating to the children (s 65DAC).
Neither the mother, nor the ICL, seek any allocation of parental responsibility at an interim stage. They, therefore, necessarily assume the presumption is presently inappropriate, or is inapplicable or rebutted, according to my discussion of the law above at [59].
I have not made any finding of family violence. At an interim stage, I do not find there are reasonable grounds to believe that either parent has engaged in abuse or family violence so as to render the presumption inapplicable pursuant to s 61DA(2).
However, I am satisfied that the presumption is inapplicable at an interim stage in relation to X within s 61DA(3). The extensive discussion of X problems under s 60CC(2)(b) above demonstrates that no order should be made at present allocating parental responsibility for X.
The problems presented by X, and the existing inability of the parents to co-parent at all, and the discussion of the statutory considerations, persuade me for the purposes of s 61DA(3) of the Act that it is also not appropriate to apply the presumption of equal shared parental responsibility at this interim stage in relation to the girls.
No order should be made allocating equal shared parental responsibility at this stage.
Live with the Mother
The mother and the ICL proposed an order that all the children live with the mother. I accept this is appropriate for the girls.
But the evidence is clear that X lives separately most of the time and has a compromised relationship with the mother. He is over 17 years’ old now. I see no point in making an order for him to live with the mother. He may live with her according to his wishes, but forcing the issue by Court order may be counterproductive, in light of his vulnerabilities.
Time with the father
This leaves for determination whether the orders should be made for the girls to spend any time with the Father.
On balance, after careful consideration of the evidence and competing arguments, I consider that it is appropriate to make no orders for the girls to spend time with their father at this stage. I have reached this view with some misgiving, acknowledging the strength of the father’s arguments that this is not a “no time” case, and acknowledging the inherent unfairness to the girls in being denied time and an ongoing relationship, for some further period at least, with their father because of their brother’s problems.
But ultimately I accept the Court should proceed very cautiously in light of the exceptionally grave risk from making orders now for the girls to spend time with their father. I accept the mother’s submission that in light of X’s volatile mental health, the Court should not take any step which has the potential to disrupt X’s embrace of a more positive state of mind and the constructive proposals for undertaking a TAFE course. I accept that the production of Dr LL’s report is likely to provide assistance, in shedding more light on X’s many vulnerabilities, on the trajectory of the recent indications of improvements in his state of mind, and, for example, on the need for the girls to have some respite from his problems away from the mother’s home and with the father.
I note here that the father has offered supervision. He raised this possibility after the interim hearing. One proposed supervisor is Ms L, the father’s sister and aunt of X and the girls. The other is Mr K, the father’s brother in law and uncle to the children. Both have provided an affidavit consenting to supervision, supported by an undertaking, acknowledging its serious nature. This material was provided on 22 September 2020, after the hearing on 16 September 2020.
The mother argued supervision would not remove the concerns about appropriate safeguards, and there is “no evidentiary foundation that supervision would ameliorate the risk in these proceedings”. She also points out there is “no evidence from the proposed supervisors that they have been made aware of the allegations made to understand the role as supervisor or to understand whether or not it is appropriate to supervise”. At present I accept this submission. It is unclear what knowledge the proposed supervisors know about X’s concerning ideations or what impact supervised time between the girls and their father would have on X. It is possible it may allayed his concerns about protecting his sisters. At present I do not know. However, the use of supervision may be revisited at a later point in time, if appropriate, after further evidence is available, especially expert evidence.
interim parenting dispute - Conclusion
This interim parenting dispute is extremely difficult to decide. Whatever the Court orders there will be either detriment to the girls from not seeing their father or, the possibility of disastrous consequences for both X and the girls, from actions of X, if they do. It is another case of reaching the least worst outcome for the time being.
The evidence satisfies me that orders should be made substantially as proposed by the ICL, with some modifications. These will involve the parents in ongoing therapeutic intervention. I am of the view that it is very important for the girls that the father may continue regularly to communicate with them electronically and through cards and letters. The mother needs to support and facilitate this.
I am not persuaded the proposed restraint on the father attending the school is appropriate. I am unable to find that the father poses any risk to the mother or the girls in such a situation. The girls attend N School. As noted earlier, X was expelled from this school and no longer attends any school. The evidence suggests he is in the home of the girls infrequently. The girls may benefit from the father attending school events to support them. This would happen in an open and public situation, and allow the girls to have some brief contact with the father in a neutral space. Such contact does not constitute the girls spending time in the father’s care, and would not obviously trespass into any area of concern expressed by X. If the father attends the girls’ school I am satisfied that the parents should use their best endeavours to remain no less than 30 metres from each other.
I propose to order that the ICL explain the orders to the children including X. This may help all the children understand the orders and why they were made.
SPOUSAL MAINTENANCE
The mother seeks an order for the payment $1,505.00 per week for spousal maintenance. Orders for spousal maintenance are made under s 74 of Part VIII of the Act, which gives the Court a discretion to make “such order as it considers proper” for the provision of maintenance. By reason of s 80(1)(h) the Court may exercise the power conferred by s 74(1) by making an interim order pending the disposal of proceedings or until further order: Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 at [6].
As the High Court made clear in Hall v Hall at [3] (supra), s 72(1) sets out a threshold or gateway, to making spousal maintenance orders, in the following terms: “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in s 75(2)". The threshold therefore requires consideration of the factors in s 75(2).
The following are well settled principles regarding import of the adverb “adequately”: it does not connote subsistence: Evans & Evans (1978) FLC 90-435; Bevan & Bevan (1995) FLC 92-600; where possible both spouses should continue to live after separation at the level which they had previously enjoyed if this is reasonable: Patterson & Patterson (1979) FLC 90-705 at 78, 759; or it may be that the term adequately requires a lower standard of living than that enjoyed during cohabitation because after separation the financial resources are not sufficient to enable the parties to each maintain the same standard of living they enjoyed when they lived together: Nutting & Nutting (1978) FLC 90-410. It is a question of the standard of living that is reasonable in the circumstances, having regard to any relevant matter referred to in subsection 75(2).
In an application for interim spousal maintenance, “the evidence need not be so extensive and the findings not so precise” as required for a final order: Redman & Redman (1987) FLC 91-805; 11 Fam LR 11; [1987] FamCA 2. The Court can adopt a “broader brush” approach to the financial evidence for the determination of interim spousal maintenance: Osferatu & Osferatu [2012] FamCA 408 at [48].
The mother’s application for spousal maintenance included an order for urgent spousal maintenance pursuant to s 77 of the Act. This was not pressed in written submissions.
The father opposes the mother’s claim for maintenance.
The threshold question – if, and only if, the mother is unable to support herself adequately
Pursuant to her Financial Statement filed 10 September 2020, the mother receives payments totalling $1,700 per week. These are made up of government benefits, being both Family Tax Benefits ($148) and Jobseeker Payments ($586), as well as child support paid by the father in the sum of $966 per week. None of these can be taken into account in assessing her claim for spousal maintenance: s 75(3).
As a result, it is the mother’s case that she has no income of which the Court can presently take account when considering her reasonable needs and current financial position. The father did not dispute this.
The mother is not presently working in paid employment. She claims that her own “personal difficulties relating to PTSD and anxiety” as well as “the responsibilities for caring for the children on a fulltime basis” have precluded her from continuing in her previous position.[45] She also emphasises that care for X takes up a significant portion of her time and, in part, precludes her from working. In addition, she currently has full-time care of the girls, even though they are of school age.
[45] Mother’s Written Submissions filed 20 September 2020 at [19].
The mother claims that she has a personal expenditure of $2,115 per week.
She argues that her expenditure is reasonable. She is currently living in ‘suboptimum’ conditions, in a studio apartment attached to her father’s home. X has his own studio apartment. She seeks to relocate to larger accommodation, but claims that she cannot do so with her present funds.
A number of the mother’s expenses are predicated on her care of three children. For example, she argued her proposed rent of $750 a week was reasonable “given that she will have the responsibility for housing herself and three children in Northern Sydney (so that the children remain proximate to their school)”. This seemed exaggerated. There was no dispute the girls would continue to live primarily with her, but the evidence was also clear that X no longer attends school, often lives independently, and in any event has a ruptured relationship with the mother. X will reach 18 in less than 12 months. At present, X enjoys his own studio apartment courtesy of the maternal grandfather. There is no evidence of what his future plans for accommodation are, but I find it is unlikely he will live on a full time basis with the mother and the girls.
The father accepts that the mother has no current income, but argues the mother does have an earning capacity. He submits that she has a demonstrated history of combining employment with caring for the girls, pointing out she resigned from her previous employment one year after separation, in early 2020. The mother connects her inability to earn income with a need to care for X. In her evidence, she expresses the hope to be able to obtain a part-time job in the future when the burden of X’s medical appointments and needs subside. Whilst he accepts that X is “unwell”, he suggests that X’s medical records demonstrate that X is often alone for his counselling, supporting the inference that the mother need not attend, and he spends considerable time away from the mother’s home.
There is some force in this argument. The mother was able to work while caring for the girls in 2019. The girls are older now. My discussion of the evidence and conclusions above at [125]–[126] show the mother does struggle to cope as a parent, and the emotional pressure upon her engendered by X is likely intense, but X’s relationship with the mother is compromised and he clearly charts his own course about where he lives and spends time. The evidence is inconsistent with the extent of her asserted need to be involved in his ongoing care. The mother has provided no medical evidence about her own health, which would support a conclusion she cannot work for medical reasons. The father acknowledged in submissions that the mother may experience challenges obtaining full time work as a consequence of the COVID-19 pandemic. As at the date of judgment, it is notorious that in Australia, the restrictions created by the pandemic have eased. Nonetheless the stress caused to the mother as a parent by X’s behaviours would also probably cause the mother to have some difficulty finding, and carrying out full time work. However, I am not persuaded that she has no capacity for work. I find that although the mother’s opportunity and ability for employment is at present compromised, she has unrealised capacity to earn income. But I also accept there is little prospect of the mother obtaining paid employment in the immediate future.
I take account that the mother’s possible need to retain her share of the proceeds of sale of the Suburb W property and not use it for day to day support, because it is not always to be entirely disregarded: Fewster & Drake (2016) FLC 93-745; (2016) Fam LR 38; [2016] FamCAFC 214 at [106]. The mother gave evidence that from the $150,000 she is to receive from the sale proceeds of the matrimonial home, she will have to buy a car, obtain furnishings, white goods and other items to set up a home for her and the children, pay a bond and potentially lump sum rent to obtain rental accommodation; and fund future legal expenses.
The mother argued the $150,000 otherwise will not be available to her long term to meet any shortfall between her income and expenses, or sufficient to cover that shortfall pending final property orders being made in these proceedings.
The mother’s submissions about paying rent were confusing. She argued she needs spousal maintenance in order to acquire alternate rental accommodation. But, as just pointed out, she also maintains she will use part of the $150,000 for the same expense, as well as also arguing the “$150,000 will not be available to her to fund ongoing rent for independent accommodation”. A resolution of this apparent inconsistency would be that the mother proposes to pay a lump sum for rent from the $150,000 to cover an initial period, and thereafter will need spousal maintenance to cover the rent. However, this way of arguing obscures when this particular claimed element of need for spousal maintenance would arise.
The mother also has credit card facilities which are at their capacity. She argued that she has no way of paying these expenses from income. These debts could of course be retired by utilising part of the $150,000.
The mother argues her expenditure is reasonable. The father seemed to dispute this in submissions but taking a broad brush approach I am unable to conclude that her expenditure is unreasonable.
I find on balance the mother is unable to support herself adequately and meets the threshold.
The threshold question – the father’s ability to support the mother
The father argues he has no capacity to meet any order for spousal maintenance. There was no dispute the father has a greater income at present than the mother. According to his Financial Statement filed 18 May 2020, the father has an average weekly income of $5,400 before tax. This is made up entirely of his salary for his work at U Company Pty Ltd. He claims in his Financial Statement expenditure of $6,670 per week.
The father further claims that, as of around 5 October 2020, his income will drop by 20 per cent, causing him to earn approximately $4,320 per week before tax. The father supported this assertion by documents from his employer. The mother disputed that these documents demonstrated the alleged 20 per cent pay decrease because they are dated “Jun. 09”, and refer to an “immediate reduction in direct costs”. As of 30 September 2020, the father had not suffered the relevant reduction.
I do not consider it either possible or necessary to resolve this question for an interim application. Whether the father’s income has been decreased or not, according to his evidence there is no surplus which establishes a capacity to pay spousal maintenance, either at $1505.00 per week or some similar lesser figure.
The sale of the former matrimonial home will mean that the father no longer has to service the mortgage, rates and levies, or insurance. In addition, the father seems to accept that the loan on the Motor Vehicle 1 will be discharged, meaning that this will also reduce his expenditure. This will result in the father’s expenditure being reduced by $2,161 (Mortgage of $1,687, rates of $69, Home insurance of $40, Motor Vehicle 1 lease of $365).
After the sale of the former matrimonial home, the father will need to find accommodation. I infer he will be required to pay rent. He gave no evidence of his likely rental obligations. I infer they would not be dissimilar to those of the mother, approximately $750 per week, on the basis I consider it likely the father will seek accommodation with sufficient bedrooms to house the girls if orders are ultimately made to permit this.
The father submitted that he has fixed weekly expenses for income tax, child support, superannuation, school fees and private health insurance (“fixed expenses”) in the sum of $3,894. I accept this is correct.
He also claims in Part N of his Financial Statement expenses of $556 per week for himself.
Therefore total of his fixed expenses and Part N expenses for himself is $4,450 ($3,894 +$556).
The mother sought to dissect Part N of father’s Financial Statement, suggesting that his expenses are “needlessly high”. For example, she suggests that $38 per week on holidays is too high given the global pandemic, and that $65 per week on car parking when the father is presently working from home is unnecessary, although there is no specific evidence that this is the case. She also suggests that $19 per week for gifts should be rejected. The Court is not in a position, in carrying out a “broad brush” assessment, to evaluate categories of weekly expenditure in this way. The evidence did not permit this to be sensibly done. No doubt both parties could trim expenditure if they tried. I am not persuaded the father’s expenditure can be characterised as excessive for interim purposes.
The father claims to be paying $363 per week for the children’s education as well as $21 for activities totalling $384 per week. I accept this as correct. The mother’s contentions about school fees were internally inconsistent. She points to invoices from the children’s school which suggest that these fees are not actually being met by the father. His evidence is that he has made the payments although with difficulty. But the mother argues that even if the father has not paid school fees, he should, therefore conceding he will have an ongoing liability which will have to be met at some point.
The mother submits that the husband’s positive bank balance of $11,000 suggests that the father is not under financial pressure. She otherwise points to two separate donations of $48.00 to charity which she argues is inconsistent with a person under financial stress. I do not accept this argument. I am unable at present to draw any clear inference from the bank balance, and donations of $48 to charity provide a modest tax deduction and are de minimis amounts.
I do not find the mother’s submission about the magnitude of the father’s capacity persuasive. It is clear his income is greater than the mother’s, but so are his weekly expenses. This is true even if one excludes any mortgage payments or expenses for the matrimonial home before it is sold, and from which he will be released after it is sold. Even if his salary remains at $5,400 before tax, he will be left with approximately $950 from which he will have to pay rent. I do not consider it unreasonable for the father to retain most of this amount for rent, if he chooses.
If his salary reduces by 20 per cent, the father will suffer a shortfall, but I am not presently clear that this reduction has happened or will happen.
Taking account of all these factors, on the present evidence, I find that the father is reasonably able to pay spouse maintenance, but in the modest amount of $100 per week.
Conclusion
I will order the father to pay interim spousal maintenance of $100 per week.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Harper
Associate:
Date: 17 December 2020
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