Maguire and Carlyle (No. 2)

[2014] FamCA 456

FAMILY COURT OF AUSTRALIA

MAGUIRE & CARLYLE (NO. 2) [2014] FamCA 456

FAMILY LAW – CHILDREN – Interim parenting – Whether the children’s time with the father should be suspended on a short-term basis – Cautionary approach to risk of harm

APPLICANT: Mr Maguire

RESPONDENT: Ms Carlyle

INDEPENDENT CHILDREN’S LAWYER:	Mr Samuel
FILE NUMBER:	PAC	5051	of	2011

DATE DELIVERED: 13 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kernick

SOLICITOR FOR THE RESPONDENT: Ms Coady of Parks Coady Family Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Samuel of Brian Samuel & Associates

Orders

1. The mother’s Application in a Case filed 13 June 2014 seeking that the father’s time be suspended is listed for interim hearing on Thursday, 26 June 2014 at 2.15pm.

2. Pending further order, the father’s time with the children pursuant to Order 1(3) of the Orders made on 18 February 2014 be suspended until 26 June 2014.

3. Neither parent is to allow the children to participate in or expose them to any video game, electronic game or any form of media that involves violence or allow any other person to allow them to participate in such a game or be exposed to such material.

4. Leave is granted to the Independent Children’s Lawyer to issue additional subpoenas at short notice as they consider relevant to the issues in the proceedings, without further leave of the Court, and such subpoenas are to be listed on Tuesday, 24 June 2014 at 9.30am before a Registrar.

5. Pursuant to section 62G (2) of the Family Law Act 1975 the parties and the children of the relationship attend upon Family Consultant Mr P on a date and at times to be advised for the purposes of the preparation of an updated Family Report.

6. The Applicant is to file and serve a Notice of Address for Service in this Registry within seven days of today’s date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maguire & Carlyle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5051 of 2011

Mr Maguire

Applicant

And

Ms Carlyle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The mother in these proceedings has brought an Application in a Case that the children’s time with their father be suspended pending further order.  That application has been listed to be heard on 26 June 2014, which is one day short of two weeks away.

2. In the interim, the mother seeks suspension of the children’s time with their father and it is important to bear in mind that at this stage all we are talking about is the suspension of time between now and 26 June 2014, with the application to be heard on that date.

3. The evidence that may be before the Court on 26 June 2014 may very well be and hopefully will be quite different, or certainly a lot more detailed and a lot more well-known, but at the moment I have to make a decision on the basis of the very limited information known to me.

4. The mother has filed an affidavit in support of her Application in a Case.  She has not been cross-examined on that affidavit, which is the normal procedure in interim matters.  However, it has been indicated that the father does not dispute that on Tuesday 3 June 2014 when the mother took the child N, who is seven, to counselling at UNIFAM, the counsellor came out of the room and showed the mother a picture that N had drawn on the whiteboard.  That picture showed a person sitting on a motor bike pointing a gun at a car and that the UNIFAM counsellor said to the mother that N had reported or recounted that he was with the father on a motorbike and that the father had pulled out a gun and shot someone.  As I say, the father does not dispute that those words were said by N and that he did that drawing, though he does dispute that he did what N has reported.

5. It is also not disputed that, as a result of the mother receiving that information, she passed it on as a protective parent, and the father does not criticise her for it, to her family support service and both that service and UNIFAM themselves reported the child’s disclosure to the Department of Family and Community Services, which itself have reported the matter onto police.

6. The role of this Court is not today or in two weeks’ time to determine whether the father is guilty of a criminal offence.  That is not what this Court is concerned with.  It is concerned with whether there has been and whether there is an unacceptable risk of harm to the child.

7. I also add in terms of the undisputed facts it is also not in dispute that the child C is currently not wishing to see her father and her father respects that that is C’s current view.

8. There is a lot more information contained in the mother’s affidavit, which is, as I understand it, very much in dispute, including the circumstances in which C has made the decision not to see her father.  There are some very serious allegations made against the father, which I would anticipate he would wish to respond to for the hearing on 26 June 2014, but they are matters in dispute; they are not matters that are agreed for the purpose of this application.

9. Also, for the purpose of this application, there is no dispute, indeed the father has given further evidence about the two younger children N and S who have significant need for speech therapy.  This has been a matter known to the father for a number of years now and has been a central issue in various Court appearances, including the Less Adversarial Trial and the first days of the trial proper.  Notwithstanding that there have been Orders which the father has indicated to the Court he has been capable of fulfilling, that the children have two sessions each of speech therapy when they are spending time with him, in fact, the father has not been taking the children to speech therapy since March 2014 and he says it is because it is something that he cannot afford.

10. That aspect of the father’s care of the children is not central to the application today but it is also one of the other factors to be taken in to account which is not in dispute.

11. There is another matter which arose in the course of submissions, which would not have been relied upon if it were not the agreed fact.  That is, N, who I have indicated is aged 7, plays computer games or X-Box or some form of electronic games at least at the home of the father, and it may very well be also at the home of the mother, which are completely inappropriate for a child of that age as they are games which are said could give rise to N mimicking behaviour, that is, shooting.

12. The issues such as the father putting his financial state above the needs of children and allowing children to play games of that sort are the sorts of matters which give rise to my concerns.  The Family Consultant has also commented on the inability of the father to focus upon the needs of the children first as opposed to his own needs and the father’s failure to understand what is developmentally appropriate with respect to the computer games.  If in fact it is also happening in the mother’s home, those remarks also apply to her and these are the various sort of reasons that I have been asking for the Department to intervene, though it appears that, yet again, they are not going to.

13. Mr Samuel, the Independent Children’s Lawyer, is quite right when he points out the test so far as the Court is concerned of what is in the best interests of the children where the big issue is the primary consideration of the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  That the test is one of unacceptable risk, and he and the mother both submit on the limited information available to the Court from the uncontested facts that an unacceptable risk does arise.

14. It was submitted on behalf of the father that the disclosure is somewhat fanciful, that one would expect that if somebody had been shot that that person would have presented to police, would have presented to the hospital and that it would have led to some other form of investigation.  He says the very fact that police are taking no further action and the Department do not seem to be taking any action, despite the seriousness of the allegation, should give the Court some comfort.

15. I agree that on the face of it, it does sound somewhat fanciful that a parent would shoot someone in the presence of their child, but whether or not it would lead to a police investigation and a complaint is a different matter.  People take all sorts of things into their own hands.  Just because it is said that the father shot at a person does not mean that it is being claimed that he hit the person, that the person was in fact injured.  There are all sorts of reasons why a person may engage in that conduct, which would not necessarily result in a complaint by the person who is said to allegedly have been harmed.  In fact, it is not said that, for example, he shot someone and the person was bleeding, or the person fell over, or any of those sorts of things; simply that he shot him.  Although there was some suggestion that he shot him in the leg, that is in fact not contained in the complaint and it may be that on closer examination it is not necessarily as fanciful as it may appear at first blush.

16. I do accept that it has got that element but it certainly is something that, of itself, is a very, very serious disclosure.

17. This is a matter where, of course, in determining what is in the best interest of the children, the Court has to consider the other best interest considerations and the other primary consideration, and that is the issue of the children having a meaningful relationship with both parents.  This is not the actual application today where it is being sought that time with the father be suspended until further order and all that is being sought to be suspended at this stage is the time for another four day period, which the children would ordinarily spend with the father.  In those circumstances, it really could not be said that there is likely to be any harm to the relationship between the children and their father.  It is not being suggested that the suspension will go on for anything more than one single period of time together.

18. It is not a matter where it is about vindicating the father’s position whether he did or did not commit this action.  The issue is focusing on the risk of harm.  Taking into account the serious nature of the allegation itself, combined with the other undisputed facts, in my view, there is an unacceptable risk and I do make the order, and I stress it is an interim order only until 26 June, that the time with the father is suspended.

19. I also impose an additional order that neither parent is to allow the children to participate in or expose them to any video game, electronic game or any form of media that involves violence, or allow any other person to allow them to participate in such a game or be exposed to such material.

20. On the next occasion, in addition to dealing with the application relating to the suspension of the father’s time, further directions will need to progress the matter, including as to filing of updating affidavit material.  At this stage I will, however, order an updating Family Report so the parties can be placed in the queue for interviews.  The materials to be put before the Family Consultant can be identified and refined on the next occasion.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 June 2014.

Legal Associate:      

Date:    23 June 2014