Loraq and Royce

[2016] FCCA 3459

FEDERAL CIRCUIT COURT OF AUSTRALIA

LORAQ & ROYCE [2016] FCCA 3459

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged six years – parties separated for many years – significant allegations of family violence – mother asserts child is fearful of father – mother’s case supported by independent therapist – father seeks to spend time with child at CCC – mother opposed to child spending any time with father – nature of interim hearing – matters to be considered – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB; 60B; 60CC; 61DA

Deiter & Deiter [2011] FamCAFC 82

Applicant: MR LORAQ

Respondent: MS ROYCE

File Number: ADC 2683 of 2016

Judgment of: Judge Brown

Hearing date: 1 November 2016

Date of Last Submission: 1 November 2016

Delivered at: Adelaide

Delivered on: 1 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Bosko

Solicitors for the Applicant: All Family Law

Counsel for the Respondent: Ms Tinning

Solicitors for the Respondent: Douglas Hoskins Legal

ORDERS

THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:

1. The child [X] born (omitted) 2010 live with the mother.

2. The father is restrained and an injunction issue restraining the father from approaching the child’s place of education and any place in which he engages recreational activity.

THE COURT ORDERS THAT:

1. This matter be listed for final hearing before Judge Brown on 4 & 5 May 2017 at 10.00 am NOTING two (2) days hearing time has been allocated and will not be exceeded without leave of the Court.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 January 2017.

3. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

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

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

4. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Coordinator, Federal Circuit Court of Australia.

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

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

   (a)a Children’s Court;

   (b)a child protection authority;

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

   (d)a convener of any legal dispute resolution conference

NOTING:

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

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

1. Further consideration of the matter is adjourned to 17 February 2017 at 9.30 am for trial directions and in anticipation that the Family Report will be to hand.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2683 of 2016

MR LORAQ

Applicant

And

MS ROYCE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy arising in the case, it is appropriate that they be transcribed.  The reasons have been corrected from the transcript to remove grammatical errors and efforts made to make the oral reasons amenable to being read.

2. This morning, I have an application in which Mr Loraq is the applicant and Ms Royce is the respondent.  The parties are the parents of [X], who was born on (omitted) 2010. 

3. Mr Loraq commenced the proceedings on 20 July 2016.  On an interim basis, he seeks orders that the parties should share parental responsibility for [X]; [X] should live with his mother; and, pending final hearing, spend regular periods of time with his father, during daylight hours.  It is proposed that the child be exchanged between the parties at the (omitted) Police Station.

4. Ms Royce responded to that application on 6 September 2016.  On an interim basis, it is her position that she should have sole parental responsibility for [X] and that he should live with her.  On an interim basis, she proposes that there be no time between father and child.  It is primarily the issue of what time, if any, [X] should spend with his father, which is the focus of these interim proceedings.

5. As the case has gone along, as well as today, each party has changed their respective position.  It is now Mr Loraq’ position that there should be a process of supervised time, at a children’s contact centre, in (omitted), in order to re-introduce him to [X] in a safe and controlled setting. 

6. It is Royce’s position that the matter should be fixed for trial and the nature of [X]’s relationship with each of his parents be examined in a family report prior to that hearing.  However, pending the preparation of that report, she contends that there should be no time between [X] and his father, including at a CCC.

7. The father’s position is set out in his affidavit filed with his application.  The parties met one another in (omitted) in 2005.  They began a relationship thereafter and separated when [X] was a baby.  It is common ground between the parties that they have really no shared history of looking after [X] together. 

8. It is essentially the father’s position that he was excluded from the child’s life as a consequence of the mother’s actions, which stem from her animosity for him.  He concedes that he has not had any physical time with [X] since May of 2015.  He has, however, interacted with [X] via FaceTime. 

9. It is Mr Loraq’ position that he is in a stable relationship with his current partner Ms C.  He characterises Ms C a responsible person, with qualifications in home and community care, and, as such, if the Court deems it appropriate, she would be able to supervise his time with [X] and this should to utilise the terminology adopted in  his affidavit appease the mother.

10. Mr Loraq’ affidavit is not a particularly lengthy document compared to many that are filed in the court in child related proceedings. Certainly he has not gone into any great detail as to the nature of the relationship between the parties, particularly whether their relationship was characterised by family violence and who was responsible for that violence. 

11. He has however provided some photographs of him and [X], which indicate happy situations – [X] on a quad bike; and sitting on his father’s lap, with both concerned smiling.  The import of the photographs being the he and [X] have a comfortable and loving relationship with one another, notwithstanding the interruption which has occurred in it.

12. In contrast, the mother has filed extensive affidavit material.  Indeed the proceedings were delayed, from their first directions date 12 September 2016, because she wished to examine carefully some documents that had been subpoenaed, on her behalf, from the South Australian Police, which she asserted would support her contention that the father is a violent and anti-social person. 

13. More significantly, she wanted to obtain a report from a person called Ms E, who is a social worker who has been attending upon [X].  She is employed by (omitted health organisation) as the (omitted)(omitted) clinical senior social worker.  She also has a private practice in which she provides counselling services.  She has also worked for a number of organisations, as I understand it, based (omitted).

14. The mother has a very different view of the parties’ relationship and of [X]’s relationship with his father.  It is her position that both before and after [X] was born the father had issues to do with drug and alcohol dependence, particularly a significant and daily dependence of marijuana. 

15. It is her position that the father has difficulty controlling his anger and that she has been the subject of several serious physical assaults from Mr Loraq, both before the parties separated and particularly at the time of their separation.  She further alleges that the father has continued to subject her to coercion and control in the period after the parties separated and this has had significant emotional consequences for [X].

16. It is Ms Royce’s position that she has received numerous text messages and other communications from the father, which are threatening and frightening to her.  It is further her position that [X] has been exposed to this behaviour and is traumatised by it.

17. Ms Royce has, via her solicitor, compiled extracts from the police records which provide corroboration of her assertion that police were called to the parties’ home in 2011 and complaint made, at that stage, that the mother had been assaulted by Mr Loraq. 

18. It is also the mother’s position that the police records indicate that there has been violence in the relationship between Ms C and the father as recently as earlier this year in January.  As such, the mother contends that the father’s behaviour has not changed and necessarily Ms C cannot be regarded as a suitable supervisor.

19. It is the mother’s position that the father has disregarded orders put in place for her protection and in June of 2016 attempted to remove [X] from his school, which caused him great emotional upset.

20. Significantly, Ms Royce relies on the report of Ms E.  Ms E reports that [X] has had very, very many sessions with her since 2014.  I think the number of sessions is 53.  Ms E has also visited [X] in his home.  As a consequence it is Ms E position that she knows [X] very well, particularly in terms of his anxiety about spending time with his father.  

21. It is also Ms E’s position that, although she tried to engage with Mr Loraq to see if the relationship breakdown between him and [X] may be repaired, he has declined to be involved in any therapeutic intervention.   In these circumstances, Ms E reports as follows:

    “Due to the inconsistency of contact and ongoing domestic violence perpetrated by the father towards the mother which [X] has been exposed to, [X]’s relationship with his father is now compromised.  Since 2015, he has not viewed his father in any form of ongoing relationship;  he is his dad in Adelaide.  It is also discussed the domestic violence and the father scares him.  [X] presents as a child who is scared of his father and what he is capable of.  A further concern is that [X] feels obligated to keep his mother safe from the father due to the extent of the domestic abuse.  [X] has been present during phone conversations whereby the father has verbally abused the mother over the last two years, and this has compounded his anxious tendencies and requests to have no contact with the father.”

22. She further reports that:

    “As a six year old boy, [X] is aware of the family dynamics and that the father has perpetrated domestic violence to his mother.  He has expressed numerous times since 2015 that he does not want to have any form of contact with his father.  Of concern is that [X] has not had a positive relationship with his father for many years.  The father has utilised the time he has with [X] to continue to perpetrated domestic violence towards the mother.  Since the attempt to take [X] from school by the father and the Court proceedings were instigated by the father, [X] has become more socially withdrawn.  He has increased sleep issues, eating problems, as well as headaches with no medical reasons for this.  [X]’s mental health has deteriorated, as he is concerned he will be made to have contact with his father.  He has developed a plan to ensure he has no contact, such as running away.”

23. These are interim proceedings.  Necessarily, they take place in a truncated form, which does not allow for cross-examination.  I am also well aware that both Ms E’s opinion and her expertise to provide it have not been subject to any level of scrutiny.  Mr Loraq does not accept that [X] is frightened of him.  Rather, he asserts that the mother is influencing the child against him

24. It is also, I think, Mr Loraq’ perspective that Ms Royce has exaggerated her claims of violence against him and is wanting to frustrate his level of relationship with [X] in order to satisfy her own emotional needs.  For her part, Ms Royce asserts that she is only wanting to protect [X] from coming to harm.

25. At the interim stage, the court is often presented with very difficult cases against a background of extreme urgency, in a context where the evidence available is both limited and untested.  I have not seen either of the parties in the witness box, at this stage, being cross examined.  As a consequence, I am not in a position to determine their respective levels of credibility and make concluded findings of fact about the significant areas of dispute between them, which centre on allegations of family violence. 

26. In addition, at this interim stage, there has not been time to prepare any independent assessment of the [X]’s emotional needs and his relationship with each of his parents through the form of an independent family assessment.  Such a report will be ordered in conjunction with the final hearing of the case.

27. However, as has been pointed out in a number of cases, including recently Deiter & Deiter[1], it is still my responsibility to assess the gravamen of the allegations and put in place a response which is proportionate to the degree of risk, as I assess it. 

    [1]  See Deiter & Deiter [2011] FamCAFC 82

28. I am not in a position to ignore claims of family violence merely because they arise at the interim stage and I cannot make concluded findings in respect of them.  However, in this matter, there is corroboration in the form of the police record and there are also the reports of the child himself made to Ms E.

29. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

30. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

31. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

32. There are two primary considerations, which are as follows:

    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.

33. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

34. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

35. These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. 

36. Two of the objects or aims of the legislation are set out in section 60B(1) as follows:

    “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

37. Two of the relevant principles underlining these objectives, which appear germane to the parties’ situation as parents, are set out in section 60B(2) as follows:

    “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

38. Family violence is defined by section 4AB(1) of the Family Law Act 1975.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

39. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

    ·an assault;

    ·stalking;

    ·repeated derogatory taunts; and

    ·intentionally damaging or destroying property.

40. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

    ·overhearing threats;

    ·seeing or hearing an assault;

    ·comforting or providing assistance to a member of the child’s family, following an assault.

41. At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made.  As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case. 

42. In Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

43. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

1. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

2. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

3. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

4. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

5. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

6. In this case, I am satisfied that there are reasonable grounds for me to conclude that [X] has been exposed to family violence in the past.  As a consequence of that, I do not propose to apply the presumption of equal shared parental responsibility.  I am satisfied that it has been rebutted. 

7. In this case, having considered Ms E’s report, I think the most important factor is the potential risk that [X] may come to some harm if he is compelled to spend some time with his father, no matter how objectively safe that time may be.  [X] has said to Ms E that he will run away.

8. The other significant factor, I think, is that [X] has not interacted with his father for a significant period of time.  It is essentially the submission of Ms Bosko, the father’s counsel, that, in those circumstances, it makes sense to begin steps to restore the relationship between father and child, through the mechanism of a children’s contact centre sooner rather than later. 

9. I am concerned that, given the complexity of this matter and the very many issues which arise in it, that such an intervention has the potential to miscarry.  I cannot overlook the fact that I am directed to give primacy to protective concerns.

10. How and by what means [X] is to be reintroduced to his father is clearly a matter of some complexity.  In those circumstances, I am persuaded that the next step in this case, which, in my view, raises quite significant issues of family violence, is to commission a family report into the family, in conjunction with a final hearing.  That can happen reasonably quickly.

11. At that stage, depending on what the report recommends, the next step forward, perhaps, may be clearer.  At that stage it may be appropriate, if there is evidence to indicate that either Mr Loraq is or is not involved with marijuana as to what is the appropriate regime by which the court attempts to oversee the father’s drug use.  But at this juncture I cannot see the point of implementing any such regime until the family report is to hand.

12. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 17 August 2017