Malcher and Malcher (No 2)

[2014] FamCA 1230

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER (NO 2) [2014] FamCA 1230

FAMILY LAW – CHILDREN – Interim parenting – Where there are three children – Where the mother seeks to suspend orders that the children spend time with their father – Where the father opposes the order and concedes a suspension of the orders for a short time only in relation to one child – Where an incident occurred that resulted in the attendance of the police – Where it is found that it is more probable than not that the father has found himself unable to protect the children from his anger – Where the father gave without admissions undertakings including not to act aggressively towards or punish the children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Malcher

RESPONDENT: Mr Malcher

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 18 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney, SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bson, SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. I note the written undertakings by the father filed in Court today noted by me and placed with the Court papers as set out hereunder:-

   1.The husband undertakes without admission that pending the release of an updating report by [Dr A] (in the event that such a report is ordered on 4 August 2014) or 5.00 pm on 4 August 2014 if such report is not ordered, he will not take any step to enforce or bring proceedings arising from any alleged breach of the existing interim contact orders, in so far as they relate to [C] born … 2003.

   2.The husband without admission, undertakes that pending release from this undertaking he will not shout at, act aggressively towards or physically punish any of the children of the marriage.

2. I order that paragraph 1 of the wife’s Response to an Application in a Case filed on 15 July 2014 is dismissed.

3. I order that all costs are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (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 SYDNEY

FILE NUMBER: SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

1. Ms Malcher, to whom for convenience I shall refer as “the mother”, is seeking further interim orders in relation to the children, B, who was born in 2002, C, born in 2003 and D, who was born in 2006.  I say further interim orders because there have been at least three sets of previous interim parenting orders which followed short hearings by judges of this Court since the proceedings commenced between the parties.

2. The mother now seeks, as a matter of some urgency, for the time that the children spend with their father pursuant to current orders to be suspended pending further order.  The children’s father, Mr Malcher (“the father”), opposes the orders sought by the mother.  He concedes a suspension of the orders for a short time only in relation to the child C and only until 4 August 2014, when I anticipate that the family and the Court will be assisted by an independent children’s lawyer.

3. Under the current orders there will be four occasions between now and 4 August when the children will have opportunity to spend time with their father.  These are 3.00 pm to 7.00 pm on Monday, 21 July, overnight on 22 July, and during the period between after school, or later, on Friday, 26 July to Monday, 29 July. 

Background

1. It is unnecessary to refer, in detail, to the background of these proceedings because I would expect that it has already been covered in earlier judgments by other judges of this Court.  Suffice it to say that the mother’s immediate application arises out of an incident which occurred last week, namely, on 9 July 2014, particularly in relation to the parties’ son, C.  Last week the children were spending time with their father during the school holidays in accordance with the orders.  Wednesday, 9 July 2014 was during the period.  An unfortunate incident occurred that day which culminated in the attendance of the police. 

2. From my reading of the parties’ accounts and also some documents that were tendered from records of the New South Wales Police, the children were being cared for by the father’s partner, Ms G.  C was asked by Ms G to change his clothes so that she and the children could go shopping.  Apparently, C did not wish to do so, and Ms G decided to leave him at home.

3. According to the police records, C became scared about what his father might do when he returned home and when his father heard that he had disobeyed Ms G.  So C ran away to his mother’s home which was, perhaps, a couple of blocks away.  The mother was contacted and she came home from work.  The mother works as a surgeon at R Hospital, a short distance away.  When the mother arrived home, she found C in the backyard.  She calmed him down and returned him to his father’s home.

4. Prior to this time, Ms G had informed the father, at approximately 12.30 pm that day, that C was not at home and that she did not know where he was.  The child’s father commenced to return home but, on the way home, he received a further telephone call from his partner, informing him that C had arrived home so the father did not need to continue home. 

5. Later that day, when the father came home, he and C had a chat.  The father said that C informed him that he did not like Ms G controlling him.  The father said that they then had a conversation about respect for adults, including Ms G.  The father said that C appeared to be responsive and to take on board the matters they discussed.  The father said that he informed C that leaving the home without informing Ms G was unacceptable and that he would have to be punished. 

6. The father said to C that his punishment would be to miss out on going ice skating the following day and that he would not be able to use any electronic devices that evening.  The father said that C then threw a tantrum.  The father heard him crying and yelling.  The father then had a further conversation with C about the tantrum and endeavoured to settle him down.  After the father left C’s room, the yelling stopped.  A short time later, the father went back to C’s room and saw that C had gone missing. 

7. It is clear that C ran away from his father’s home a second time and, again, went to his mother’s home.  But she was not there so he knocked on the neighbour’s door and the neighbour took him inside. 

8. The neighbour is Mr I.  Mr I is well known to the family, including to C.  Mr I swore an affidavit in these proceedings.  He said that when C arrived at his home, the child was crying and shaking.  He also said that the child was hysterical and found it difficult to talk. 

9. Mr I telephoned the mother and asked her to come home.  A few minutes later, the parties’ child, B, arrived at Mr I’s home and asked whether C was there.  The father then appeared at the door.  Mr I said that when the father arrived, the child became upset, hid behind him, and was shaking.  Mr I said that C appeared to be afraid of his father.  Mr I said that the father addressed C in a forceful tone, asking him to come. 

10. He said that when the child refused, the father said in a threatening voice that he would ring the police.  Mr I said that he asked the child whether he wished to go with his father, and that the child declined.  Mr I then closed the door until the mother arrived a short time later, accompanied by another neighbour.  A short time later, two police officers arrived and one spoke with the child.  After the police left, the mother took C into her care and the child has remained in his mother’s care since that time.

11. The mother said that there were many occasions during the marriage when the children’s father lost his temper and became very angry.  She said that he has poor anger management, to the point where he cannot restrain himself from yelling and screaming.  She referred to occasions when she said she had experienced the father directing such behaviour towards the children. 

12. She said that one such occasion was in 2009 when B accidentally damaged the car slightly with his school equipment.  The mother said that she saw the father pull the child out of the car and that the father was screaming at the child in a loud and aggressive manner.  She said that B appeared to be terrified and was crying and cowering. 

13. The mother also referred in her affidavit to another incident in early to mid-2010 when she said the father became angry and C was present.  The mother also referred to another incident on 3 September 2010, when she said that there was an argument.  She said that the father became enraged and she described the manner in which he allegedly behaved towards the children. 

14. As I have indicated to all present in court today, and as was adverted to by Mr Kearney in his submissions, these allegations are matters which are seriously in issue between the parties.  Although I have not heard detailed denials about these matters, the father’s case is that the mother has got these matters all out of perspective.  He said that he does not have problems with anger and his behaviour is not such as the mother has described in the affidavit material to which I was referred.

15. But there is some objective material which tends to support the mother’s assertions that the father finds it difficult to manage his anger so as always to be able to protect the children from this.  For example, Dr A reported that, during his interview with B, B said the following:

    Sometimes living with dad was bad because of the shouting.

    And then:

    Only sometimes, though.

16. He said that C had hit D and she was yelling.  B explained that Dad would shout to fix it.  He said the worst thing about Dad was his shouting, which would happen a little, but was scary.  B acknowledged that there had been fighting when his parents were together.  Dad had shouted at the children.  Dad was shouting, using swear words.  B appeared to describe one of those incidents that I referred to obliquely on the way through, when the mother had said that the father had picked the two children up on a particular occasion in September there seemed to be some reference to that from one of the children, and I think that was B. 

17. However, as Mr Richardson pointed out, there were also many things during the interview of both B and C, and, of course, also D, which were very positive towards their father.  Dr A did make the notation that B was not fearful that it would happen again. 

18. Dr A, in referring to his interview with C, said that C told him that the bad thing about his father was that:

    He gets really spazzo about little things. 

19. Dad would shout a little bit and had hit them once or twice with his hands, smacking the back of the head.  C became teary when talking about feeling fearful when his father shouted a lot.  This would occur when his father got really angry.  And there was a reference to kindergarten when he was scared because his father got really, really angry.  Nevertheless, he felt safe when he slept at Dad’s. 

20. As I have indicated above, the next door neighbour, Mr I, said on 9 July 2014, when the father arrived at his home he addressed C in a forceful tone and threatened to call the police. 

21. As has also been drawn to my attention, added to these objective matters, it is a matter of concern to this Court that also on 9 July 2014 the police record contains an entry to the effect that:

    The father was argumentative with police and argued constantly and made false allegations about what the police said in relation to the situation.

22. To be fair about all of this, one has to approach this in the context where it must be the case that both parents must have been under great pressure on that day.  After all, there had been numerous occasions in this Court when they had litigated over a variety of matters in respect of the children.  And the reality is that their parenting relationship has become so dysfunctional that, as a consequence, they have been presented with this situation where their 10½ year old child has simply taken it upon himself to march with his own feet away from one household, apparently, to the other, which it would appear that he perceived he might get a better reception. 

23. It might be that in the fullness of time, this, and many other matters, will be explored in some detail.  But just looking at that situation, in my view, that is an extremely worrying situation because the arrangements which the parents had put in place for their children, especially C, have simply broken down and the child had taken it upon himself, at his tender age, to manage the situation.  That would be an extremely worrying situation for any parent.  It provides all sorts of complicated messages not only to C, but also to the other children.

24. As Mr Richardson said, there was an existing order which had been put in place after a hearing in this Court, which represented the Court’s best endeavour on that occasion to try and manage the situation in the best interests of the children.  Accordingly, in my view, at an interim stage such as this, one would endeavour to keep in place as much of that parenting arrangement ordered by the Court, as was consistent with the best interests of the children. 

25. Obviously, the Court is anxious to endeavour to present opportunity for the children to continue to develop their relationship with their father.  The legislation is only too clear about this and we have guidance in many shapes or forms under a very detailed and complex piece of legislation about this.  But, on the other hand, opportunity for the children to have their relationship and develop their relationship with each of their parents would only be in their best interests, provided that they were appropriately protected.  From what I can see of the material, on the balance of probabilities, it is more probable than not that the father has found himself unable to protect the children from his anger, at least on some occasions. 

26. I can appreciate that the circumstances on 9 July 2014 were very difficult to deal with on the day.  One of the ingredients was probably the proximity of one household to the other.  But, as I have said, one needs to be careful not to read this as a lesser danger than, in fact, it might well have presented to the child. 

27. As I have said it is worrying that a child of 10½ years of age would simply march with his feet to move himself away from a situation which he had found unpleasant, apparently because of what he perceived might be a reaction by his father which would not well meet what C had done – for the child then to go out onto the streets, even only for a short distance, and try and approach the other home perceived as a refuge.  This conjures up for me all sorts of dangerous possibilities.  It is obviously something that one would endeavour to strive to avoid.

28. I must consider whether to return the other two children to their father’s care in accordance with the current orders would expose them to an unacceptable risk of harm.  There are a couple of matters which concern me.  Firstly, I think the father needs to give this Court and particularly the children’s mother some comfort that there will not be any demonstration of those behaviours about which she had provided considerable detail in her affidavit concerning his loss of control, bad temper, to the point where he becomes extremely angry as reflected in the things that the children have said. 

29. These children need to be protected from any possibility of that sort of behaviour.  Because there is some objective evidence about this, which, I accept, has not been tested, in my view, the Court has to take a cautious approach. 

30. I would be most anxious to have the older two children able to move back into their father’s care in accordance with the orders.  The legislation is clear.  For most children it is in their best interests to have opportunity to maintain and further develop their relationships with each of their parents.  They obviously have a meaningful relationship with each of their parents.  This Court is under a duty, provided that it can be satisfied that the children will be appropriately protected, to continue to act in a way to bring about that opportunity for them. 

31. It seems to me, and I say this respectfully, that the mother is quite genuine in her concern about this aspect of the arrangements.  In my view, it would not be unreasonable for the father to offer some form of without admission undertaking not to do these things which the mother has alleged that she has experienced him doing and which Dr A has reported as having come from the children.  If that was to be the case, in my view, the matter would not approach the appropriate level of risk required for the mother’s application to succeed.  We would achieve the situation where it would be clear to the children that the Court has made these orders, that the parents are to act in accordance with the orders and the children are to act in accordance with the orders. 

32. The Court does not condone a situation where children take things into their own hands.  It seems to me to act in the other way, as Mr Richardson said, could provide all sorts of unhelpful messages and probably further compound the already complicated family dynamics.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 18 July 2014.

Associate:     

Date: