Malberd & Malberd & Anor (No 2)
[2010] FamCA 586
•14 July 2010
FAMILY COURT OF AUSTRALIA
| MALBERD & MALBERD AND ANOR (NO. 2) | [2010] FamCA 586 |
| FAMILY LAW – CONTRAVENTION – defective application – application dismissed FAMILY LAW – CHILDREN – With whom a child spends time – Interim application for suspension of time between the father and the children – allegations of physical abuse – application granted |
| APPLICANT: | Ms Malberd |
| RESPONDENT: | Mr Malberd |
| SECOND RESPONDENT: | Ms Ariste |
| FILE NUMBER: | NCC | 280 | of | 2010 |
| DATE DELIVERED: | 14 July 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie - Wallace J |
| HEARING DATE: | 13 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Rees SC |
| SOLICITOR FOR THE APPLICANT: | York Family Law |
| THE RESPONDENT: | Father in person |
| SOLICITOR FOR THE SECOND RESPONDENT: | Ms Kensell, agent for Boyd Olsen Lawyers |
Orders
Pending further order, the father’s time with the children as provided for in the consent orders made 15th May 2009 be suspended.
The Contravention application filed on 21 June 2010 by the father be dismissed.
The parties forthwith make arrangements for further appointments with Dr M to discuss the present allegations and issues and to provide him with the affidavits filed in relation to them and the mother’s solicitor provide him with a copy of the reasons for decision.
That pursuant to Section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed for the children J (female) born … November 1997; T (female) born … March 2000; and W (male) born … September 2002 (“the children”).
Legal Aid New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the children.
That the Court is to advise the Senior Solicitor, Family Law Litigation Section, Legal Aid NSW of this order.
That each party make available to Legal Aid NSW copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
I note that Ms Jane Costigan, solicitor for Legal Aid NSW, was previously appointed as the Independent Children’s Lawyer in this matter and it is recommended that she be re-appointed.
The parties have liberty to apply to the Docket Registrar on seven days notice.
IT IS NOTED that publication of this judgment under the pseudonym Malberd & Malberd and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 280 of 2010
| MS MALBERD |
Applicant
And
| MR MALBERD |
Respondent
And
| MS ARISTE |
Respondent
REASONS FOR JUDGMENT
Ms Malberd (“the mother”) applies for orders suspending time spent between the father, Mr Malberd (“the father”) and the three children of the marriage; J (born in November 1997), T (born in March 2000) and W (born in September 2002). The father applies for the mother to be dealt with for contravening parenting orders.
Background
The parties separated in January 2005 and in November 2006 by agreement between themselves, the children lived with each parent on alternate weeks. After separation, the father commenced a relationship with Ms Ariste and from a time after that, the children would live with both the father and Ms Ariste.
In October 2009, the father and Ms Ariste separated and from that time until December 2009 the children would see the father while they were in Ms Ariste’s house.
From December 2006 until December 2009 the children spent each alternate week living with the father and Ms Ariste at her house.
In November 2008 there was a period of separation between Ms Ariste and the father. As a result of an incident, the arrangement that parenting time be week about was suspended and a period of supervised time implemented. At the father’s request, Ms Ariste supervised his time with the children. It was a condition of the time spent that the father not be affected by alcohol. The week about regime was reinstated in March 2009 and, at that time, Ms Ariste and the father had resumed cohabitation.
From March 2010 Ms Ariste has been spending time with the three children on alternate Monday nights at her house. The father has been spending time with the children each alternate week at his own residence.
Ms Ariste has an application before the court seeking final orders for parenting time with the three children. This is opposed by the father. As part of the preparation of that matter, all parties and the children have consulted a psychiatrist, Dr M, who is to prepare a report for the proceedings.
On 25th May 2010 the mother refused to allow the father to have time with the three children and has continued to refuse to permit him to do so.
The application alleging contravention of an order
The father appears on his own behalf and prepared the application alleging contravention of a parenting order. The application is defective in a number of respects. It does not specify the order said to be contravened. The application refers solely to the proceeding number. No sealed order was ever served with the application. The detail of the alleged contravention refers to a time and place and asserts; “the respondent without reasonable excuse refused to allow the applicant to spend time with the children ...”. No affidavit of evidence in support of the application was filed.
The mother was not in Australia at the time service of the application was attempted. Her solicitor contacted the father and agreed to accept service on her behalf and the father emailed the application to her and posted separately a copy of orders dated 15th May 2009. The orders were unsealed. By letter (Exhibit A) the mother’s solicitor requested that she be provided with “sealed, signed copies of the documents”. None was provided.
There was no issue raised about service of the application. However, senior counsel for the mother argued that the defects in the application were such that it should be dismissed.
An application that alleges a contravention of an order brings with it the real prospect of exposing a party found to have wilfully contravened an order without reasonable excuse to significant penalties. It is a proceeding designed to protect the integrity of court orders against those who would disregard them. Although it is accepted that a court may waive strict compliance with the requirements, given the gravity of the consequences that may flow from proof of an alleged contravention, I am not disposed to do so. The defects in the application are such that it is fatally defective and I will dismiss it.
Application to suspend contact
The incident which precipitated the mother’s application occurred on the evening of 23rd May 2010. The mother asked the children generally about the week with their father to which W responded that his week had been bad “because dad punched me in the face”. W said that this had happened when the other children were upstairs and he had been watching television with his father.
On the following Tuesday, 25th May, the mother spoke to W’s teacher when she dropped him at school and told her what the child had said about being punched by his father. On 26th May, W’s head teacher approached the mother and said that W had said something to his class teacher. According to a file note made by the teacher (Exhibit B) on the morning of the 25th May, W told her that his father had “punched him in the face”. W did not tell her more detail about what that had happened. Later in the day when the class was asked to write about something that had made them angry, W wrote:
“when my dad punched me in the face”
In the course of the mother’s conversation with W in which he said his father punched him, the older children raised an incident in which the father had apparently accidentally hit W during a tussle over a teddy bear. In response to that W said that he was speaking about a different time and he asserted that when his father struck him in the teddy bear incident, it was not an accident.
According to Ms Ariste’s affidavit, in April 2010 while in the car with her, W said that his father had deliberately hit him in the head on an occasion when he took his teddy bear away. The other children were also in the car and confirmed he had been hit by the father as he said.
It is to be observed that when discussing the “teddy bear” incident with the mother in May 2010, the older two children said that the hit to W was accidental. When asked about the incident by Ms Ariste, J said that she believed W was exaggerating and that he and the father were playing when he was hit. When Ms Ariste raised the incident again with W he maintained that it was no accident and added “I want to stab dad”. Shortly afterwards Ms Ariste told the mother about this discussion with W.
Ms Ariste said that while she and the father lived together she observed him frequently to smack or threaten to smack W and on some occasions she saw him grab and smack W without warning, she believed, out of frustration over W’s behaviour.
It seems to be common ground that W exhibits difficult behaviour. He has been seen by the school counsellor in 2007 and 2008 for physically aggressive behaviour at school. Ms Ariste said that the father had been advised by the counsellor not to use corporal punishment with W but had nonetheless persisted. Ms Ariste noted that in the first year of her relationship with the father, each child exhibited difficult behaviour that she attributed to a settling in process. W, in particular, was difficult and prone to angry outbursts in which he would throw things. She observed that the father would shout and become angry in response to W’s behaviour and often threatened to smack him.
Ms Ariste also commented on the father’s angry, shouted response to J on one occasion.
The father denied he had punched W. It was the father’s contention that Ms Ariste and the mother had colluded in their evidence in order to add weight to Ms Ariste’s application for parenting time with the children.
The father said that W had telephoned him on 27th May and spoke to him for 24 minutes and again rang him on 30th May and spoke for 5 minutes and argued that this was inconsistent with him having punched W as he said.
The father said that W was prone to exaggeration and embellishment and that this was an example of it. The mother agreed that W had in the past made assertions and accusations that were not true.
Father’s consumption of alcohol
Ms Ariste said that through the course of their relationship the father consumed alcohol to excess and she referred to a number of occasions on which he had passed out through drinking too much alcohol. Ms Ariste said that she saw the father drink two bottles of wine a night and be unable to be roused for some six hours after falling asleep from drinking.
She believes that the father continues to drink to intoxication while having the care of the children. On 27th December 2009 as a result of an exchange of text messages with the father, Ms Ariste contacted T. T told her that her father had fallen asleep on the lounge and said that she had taken the wine glass out of his hand. T told Ms Ariste that her father had started drinking during that afternoon. On the same night, the mother received a text message from T to the same effect. Ms Ariste made a report to the Department of Community Services about the incident. Later in January 2010, T told Ms Ariste that her father had taken away her phone because of the phone calls on the 27th December.
Both Ms Ariste and the mother expressed concern for the children as a result of the father’s consumption of alcohol. The mother said that during their relationship she had been assaulted by the father while he was intoxicated.
The father denied that he had been intoxicated while having the care of the children. He tendered text messages between Ms Ariste and himself that occurred before the conversation between Ms Ariste and T on 27th December to demonstrate that it was Ms Ariste who was intoxicated and that it was she who had raised the issue of his drinking with T. It is not clear from the contents of the texts that Ms Ariste was intoxicated. However, the text messages from Ms Ariste to T shortly after she terminated the communications with the father express concern for T and support her evidence that she formed the view that the father was intoxicated because of the way he was communicating with her. I accept Ms Ariste’s account of her conversation with T that night that her father had been drinking and had fallen asleep leaving the children to put themselves to bed.
Discussion
It is implicit in an interim application that findings based on assertions and denials must clearly acknowledge that the court has not had the benefit of hearing evidence or cross examination. That must abide the final determination of the issues between the parties. In making findings necessary to dispose of this application I must therefore bear in mind the limited nature of the evidence before the court.
A primary issue raised is whether W has fabricated the allegation against the father. It was not said by the father that he had been coached in some way to make it but that as a child given to making up stories, it has been used by the mother and Ms Ariste to further their respective agendas, to secure parenting time between the children and Ms Ariste.
The mother considered whether W had indeed been punched by his father when he first raised the matter with her. She came to the view that he was genuine in his claim. In coming to that view the mother took into account that W defended his assertion to his sisters, that he gave detail of the incident which occurred he said when his sisters were out of the room and that he had repeated his claim to his teacher orally and in writing. She examined his face where he said he was punched and saw no swelling or bruising and he had not complained of soreness in the area.
The evidence leads me to a present view that it is more probable than not that W was punched by his father as he asserted. In coming to this view, I have taken into account that W repeated his assertion to his teacher the day after the conversation with his mother. The fact of there being no obvious sign of injury speaks more to the force of the blow rather than the fact of it. I do not accept that the allegation is wholly fabricated. The telephone calls (and there is no evidence of the content of the call) from W to his father after the blow do not persuade me to a different view.
W’s claim to have been hit in the head by his father on an earlier occasion was one that was seen by the other children although whether it was committed deliberately or done accidentally is apparently disputed between them. Clearly W believes that it was deliberate.
The evidence of Ms Ariste of the father’s conduct towards W and J while they were living together of itself raises concerns that the children have been exposed to abusive behaviour by the father both in his use of corporal punishment and in shouting angry exchanges with J and W.
Both Ms Ariste and the mother recount instances in which the father has become heavily intoxicated. The mother associated some of these occasions with violence to her and in relation to the “teddy bear” incident in which W was struck, both W and J told Ms Ariste that the father had been drinking at the time.
Although the father denied he had been affected by alcohol while having the care of the children, T told both Ms Ariste and her mother that while the three children were still up her father had fallen asleep after drinking wine and she had taken the glass out of his hand in case it smashed. The sequence of text messages between Ms Ariste and the father and then Ms Ariste and T, together with T’s assertion that her father had removed her phone after the 27th December conversations, cause me to accept that the father had become intoxicated and fallen asleep while the children were with him.
Clearly these children would benefit from a meaningful relationship with their father and in the past they have spent significant time in his company. However, the matters raised by the mother and supported by Ms Ariste persuade me that there is an unacceptable risk to the children of harm if they are in their father’s care unsupervised.
The father was invited to nominate a supervisor of the children in the event that I determined that his time with them should not continue unsupervised. He declined because such a regime would be unnecessarily restrictive in the circumstances and in the past when time spent between them was supervised, the children did not enjoy it.
I will order that parenting time between the father and the children as provided for in the orders of 15th May 2009 be suspended pending further order.
Incidental Orders
The children have been represented in the past and it was agreed between the parties that it is appropriate that they be represented in the forthcoming proceedings.
It was also agreed that the parties should make further appointments with Dr M to enable him to consider the present matters and will ensure that he receives the affidavits filed in the applications and a copy of these reasons.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie - Wallace
Associate:
Date: 14 July 2010
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