Marcus and Ortelius

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARCUS & ORTELIUS

[2013] FCCA 2086

Catchwords:
FAMILY LAW – Interim arrangements for children aged 6 & 4 – high conflict – family violence – allegations of coercive and controlling behaviour – mutual allegations of neglect and drug abuse – children previously parented in equal time arrangement – nature of interim hearing – presumption of equal shared parental responsibility – relevance of police records – protective concerns – should time be supervised – drawbacks of supervised time – meaningful relationship – best interests.

Legislation:

Family Law Act 1975, ss.4AB; 60CA; 60CC; 61DA; 68B

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MS MARCUS

Respondent:

MR ORTELIUS

File Number:

ADC 2706 of 2013

Judgment of:

Judge Brown

Hearing date:

28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Adelaide

Delivered on:

9 December 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dillon

Solicitors for the Applicant:

Coombes & Co

Counsel for the Respondent:

Mr Hemsley

Solicitors for the Respondent:

Sills Lewis

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born [in] 2007 and [Y] born [in] 2009 to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
This matter be listed for final hearing before Judge Brown on 15 & 16 July 2014 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Further consideration of the matter is adjourned to 26 February 2014 at 9:30am.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children [X] born [in] 2007 and [Y] born [in] 2009 live with the mother.
The father spend time with the children as follows:
(a)each Sunday from 10:00am until 5:00pm commencing this forthcoming Sunday, 15 December 2013;
(b)each Wednesday from after school (or 3:00pm if a non-school day) until 6:30pm commencing Wednesday, 11 December 2013;
(c)from 3:00pm until 6:30pm on Christmas Day, 25 December 2013; and
(d)On [X]’s birthday, [date omitted] 2014 with both [X] and [Y] from after school until 6:30pm.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings in the presence of the child or from permitting any other person to do so.
Pursuant to section 68B of the Family Law Act 1975 the father be restrained and an injunction is hereby granted restraining him from attending at the mother’s home or the children’s school.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2706 of 2013

MS MARCUS

Applicant

And

MR ORTELIUS

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Marcus “the mother” and Mr Ortelius “the father” are the parents of [X] born [in] 2007 and [Y] born [in] 2009.
The case is concerned with interim arrangements for the care of the two boys. The evidence available is unclear and conflicted. Both parents assert that the other is anti-social, violent and drug dependant.
The proceedings began on 31 July 2013, when the mother sought an urgent listing and a recovery order for [X]. It was her case that the father had removed [X], from his school at [N] on 22 July 2013.
The mother had enrolled at [X], at the [N] school, on 12 July 2013. Previously, he had been attending the [M] School. This change of enrolment was not discussed with Mr Ortelius. She asserts that she changed the child’s enrolment because she was frightened of the father.
It is the mother’s case that, prior to this date, both children had lived mainly with her, after the end of the relationship between the parties, in September 2012. Mr Ortelius asserts that he was spending extensive periods of time, with both children, including, at one stage, sharing their care equally with the mother.
The mother further asserts that she left the relationship because the father was possessive and controlling of her; verbally abusive; and because of his drug use. It is her case that this behaviour has continued, since the parties separated and she remains frightened and fearful of him.
In these circumstances, it is her position that the only time the father should spend with [X] and [Y], at this stage, is in the professionally supervised setting of a children’s contact centre.
There would be a delay in the parties being accepted into such a contact centre and, once accepted, the maximum time the father could spend with the children would be for two hours per fortnight.
On the other hand, the father has his own serious criticism of the mother. He asserts that she regularly smokes amphetamines and cannabis and is promiscuous. During the parties’ relationship, he would categorise the mother as a neglectful parent, who struggled to maintain proper levels of hygiene in the house and provide proper care for the children.
In these highly conflicted circumstances, it is hardly surprising that the case has precipitated extreme emotions in both parties. One thing on which the parties do agree is that they finally separated in September of 2012. Thereafter, arrangements for the care of the two children are unclear to me, muddied by the turbulent and vitriolic parenting relationship of the parties.
In these difficult circumstances, it is Mr Ortelius’s case that it would be grossly unfair to him, if he was to only have supervised time with the two children. He denies that he is a violent and controlling person and asserts that, prior to Ms Marcus unilateral action in changing [X]’s school, he was integral to the care of both children.
Accordingly, Mr Ortelius seeks that the two children be parented in an equal time regime, which he asserts was the situation prior to July of 2013. Failing this, he would want to be able to spend regular periods of time, with both children, in an unsupervised setting.

Background

The parties know each other very well indeed. They began to live together in early 2004. Throughout the relationship, Mr Ortelius has worked in the [omitted] industry. The mother is currently in receipt of social security payments.
The mother’s application was listed, for the first time, on 6 August 2013. The father had not had time to file answering material, by this time, but had been able to consult a solicitor, who appeared for him on 6 August 2013.
In these circumstances, I invited the respective parties to confer with one another to see if some holding orders could be put in place until Mr Ortelius was able to prepare answering material.
I further indicated that I was concerned that the children had been separated from one another, as a result of Mr Ortelius removing [X] from school, regardless of the rights and wrongs of the enrolment.
In what were undoubtedly very difficult and emotional circumstances, the parties were unable to reach any agreement. Mr Ortelius was agitated and upset. He declined to return [X]. His solicitor felt compelled to withdraw from the case.
In these circumstances, I ordered that the child be returned to the mother, at the [M] Police Station, at 6:30pm that day. Thereafter, pending further hearing, I ordered that both [X] and [Y] should live with their mother.
Mr Ortelius was given 21 days to provide answering material. I was concerned enough, about his presentation in court, to make an order, pursuant to order 68B of the Family Law Act 1975, for the personal protection of the mother. The case was adjourned to 4 September 2013.
For reasons, which are unclear to me, Mr Ortelius did not appear at court on 4 September 2013. He had not filed any answering material prior to the adjourned date. In these circumstances, the case was further adjourned to 1 November 2013, with the father put on notice, that if he did not appear or formally respond, the case would be finalised in his absence.
Mr Ortelius did appear on 1 November 2013. By which stage, he had been able to secure legal representation, but not formally file responding material. Accordingly, the case was adjourned until 28 November 2013 and the time for Mr Ortelius to file answering material was extended to 15 November 2013.
Given that it was apparent the South Australian Police (SAPOL) had been involved in the parties’ turbulent relationship, in the past, particularly after their separation, I ordered SAPOL to provide any notifications received by the police regarding the possible exposure of the children to family violence.
Mr Ortelius filed his answering material on 25 November 2013.

Ms Marcus has also filed a further affidavit. Accordingly, from Mr Ortelius’s perspective, the proceedings have been much delayed.
This is regrettable but the delay cannot be attributed to the actions of either Ms Marcus or the court. It has however meant that Mr Ortelius has not spent time with the children, since he returned [X] to the mother on 6 August 2013.

Factual issues in dispute

It is very difficult to illicit a clear factual narrative from the parties’ affidavits, which have the appearance of being hastily prepared. The affidavit material is effectively reactive in nature. It reveals the following major factual disputes, between the parties:
·What was the nature of the parties’ relationship.
ØWas the father possessive, violent and controlling;
ØOr did the parties have unexceptional disagreements, from time to time.
·Who of the parties did more of the housework and caring for the children, during their relationship.
ØWas it the case that the father provided no help because he preferred to watch television, whilst drinking large quantities of beer and smoking marijuana; or
ØIn the alternative, did the father do much of the cooking and cleaning, as well as looking after the children because the mother was too lazy to do so.
·What were the circumstances surrounding the parties’ separation in September 2012.
ØDid the father assault the mother, in the presence of the children, causing bruising to her arms and thighs, prior to her being ordered by him out of the house;
ØIn the alternative, did the mother voluntarily leave the household, after the father complained about the unsanitary state of their household.
·What were the circumstances surrounding an incident in October of 2012, when the father entered the mother’s new residence, and damaged a camera there.
·What were the circumstances surrounding another incident, at the mother’s home, a few days later when an altercation occurred, to which the police were called.
·What were the circumstances of the parties entering into a written agreement purporting to share the care of the two children equally, in December 2012.
ØWas it a consensually agreed arrangement, as the father contends;
ØOr did it come about because the father intimidated and threatened the mother, particularly that he would have her bashed and raped and the tattoo on her thigh cut out.
·What happened at the father’s residence on 10 February 2013.
ØDid the father threaten the mother with a treated pine post and damage her motor vehicle with it.
·What were the circumstances surrounding the [M] Magistrate’s Court issuing an interim intervention order against Mr Ortelius, on the application of the Police, on 15 February 2013.
ØDid the police tell Mr Ortelius he needed to undertake a course of anger management.
·Did the father neglect the children’s care, in March 2013, when they were in his care, by allowing them to become bitten by insects.
·What weight, if any, can be given to the mother’s allegations that [X] has told her that people come and go frequently from the father’s house, who sit in the lounge room “breathing smoke from glass pipes, with balls on the end”.
·Is the father’s household unsanitary, smelling of smoke, with dirty dishes piled on the benches and in the sink.
·What happened, during an altercation, which occurred on 27 June 2013, when the mother’s friend Skye and her partner Mr R attended at the father’s household.
ØWhat were the circumstances surrounding Mr R hitting the father on the head with an empty beer bottle, leading to Mr R being charged with aggravated assault of the father.
·What were the circumstances surrounding [X]’s school enrolment.
ØDid the mother change the child’s enrolment because the father had organised a group of people to arrive at her home, at night, to intimidate her, by shining the headlights of their motor vehicles into her bedroom and revving their engines.
ØOr did the mother change the child’s enrolment because it was more convenient for her, as she had lost her driver’s license, due to non-payment of finds, and found it difficult to drive to [M].
·What is the respective drug use of the parties.
ØIs the mother’s use of drugs now historical, arising as a consequence of her relationship with the father.
ØOr does the mother currently frequent with heavy drug users.
ØDoes the father frequent with criminal and unsocial elements.
From this tangled skein of allegation and counter-allegation, some issues on which the parties agree emerge. In my view, these issues are significant. Firstly, the mother agrees that, after the parties separated, it was agreed that Mr Ortelius would spend each Tuesday and Thursday night with the children, as well as each alternate Friday night to Sunday night.[1]
[1] See father’s affidavit filed 25 November 2013 at paragraph 47 and mother’s affidavit filed 22 November 2013 at paragraph 36
It is also the case that the Child Support Agency formally recognised that the parties had a shared care regime for the children, when a child support assessment issued on 20 May 2013.
This assessment resulted in Mr Ortelius’s being required to pay $205.67 child support per month. It indicates that he had fifty percent care of the children from 16 September 2012 onwards.[2]
[2] See annexure GO2 to father’s affidavit
Accordingly, there is evidence to indicate that the parties did share the care of the children, prior to the mother changing [X]’s school enrolment, from [M] to [N]. However, it is her position that the agreement came about as a consequence of the father’s intimidation of her.
The father summarises his case as follows:
“I deny that I am a violent person. I say that I am a very loving, caring parent who places his children first and always looked after them first and foremost.
On the other hand I say that the mother is negligent in her housekeeping duties, that the mother does not properly consider the needs of the children or maintain their house in a clean, healthy state. She is disorganised and erratic in her care of the children.
The mother’s attitude is also evident from the numerous photographs on the mother’s computer of the wild parties and her interest in pornography. I believe the children must have seen these images and are aware of what the mother is doing.
I say that it is certainly in the best interests of the children that [X] and [Y] maintain regular contact with me, preferably in the previous shared-care arrangement, which both the children liked. I say it is also in the best interest if [sic] [X] that he continues to attend his preferred school at [M].
I say that in respect of paragraph 31 of the mother’s affidavit that I am very willing to have supervised urine tests for illegal drugs at any time, and am in no doubt that they will come back clean. On the other hand, given the mother’s history of illicit drug abuse I say that the mother should also be required to undertake supervised urine tests at the request of my solicitor on twenty four hours’ notice.”[3]
[3] Ibid at paragraph 134-138
On the other hand, it is the mother’s position that Mr Ortelius continues to represent a significant level of threat to her. She asserts that he does not accept that the relationship between the parties has come to an end and is using the children to intimidate and control her. She asserts as follows:
“I say that as mentioned above I do not believe the father is capable of looking after the children. On one occasion [Y] told me “daddy is going to shoot the ducks” and he said he was worried that his father was going to shoot the ducks at the pond down the road from my residence as he had seen the father’s gun. He went on to say he was scared that his father would shoot me and [X]. I am now taking both children to a psychologist.
I say that in the past [Y] has told me that if he is playing in the father’s residence the father will grab is [sic] arm and twist it behind his back. [Y] tells me that it hurts a lot.
I say since the second court appearance in mid-September 2013 the father has waited for me to return to my residence as I was driving down the road the father pulled out in front of my motor vehicle and put his hand up and pretended to shoot me. The children were present in my motor vehicle. I made a statement to the Police.
I say that the father has gone to my partner [name omitted]’s work place and threatened him in front of work mates, his boss and customers. The father has said ‘that he is going wait for him after work and he is fucked’.
I say the father is intimidating all my friends and family. He has also threatened the maternal grandmother saying she will disappear.”[4]
[4] See mother’s affidavit filed 22 November 213 at paragraphs 106-110
In these circumstances, the mother asserts that protective concerns, so far as she and the children are concerned, should dictate that the father spends only supervised time with the children. In addition, Mr Ortelius himself should be directed to undergo a course of anger management and to provide regular supervised drug screen tests.

The nature of an interim hearing

Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
In cases involving arrangements for children, the most significant piece of evidence, which is not usually to hand at the interim stage, is a detailed and independent assessment of the needs of the children concerned and the nature of their relationship with each of their parents. At the final hearing stage, such family reports play a crucial role in the determination of cases.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses, after they have subject to scrutiny through a process of cross examination.

The essential difference between an interim and final decision is that interim hearings do not determine long term arrangements for the care of the children concerned, whereas final hearings do. Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final hearing stage.

The legal principles applicable

In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
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 the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, 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 the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The recent changes to the Family Law Act, relating to family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[5]
[5] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
The recent amendments have also inserted new definitions into the Act. In particular, family violence is defined by section 4AB(1) of the Family Law Act. 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.”
Interestingly, 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;
·A sexual assault;
·Stalking;
·Repeated derogatory taunts;
·Preventing a family member from making or keeping connections with his or her family, friends or culture;
·Depriving a person of his or her liberty.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
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, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
These examples include the overhearing, by the child, of threats or personal injury made against a member of the child’s family by another family member; seeing or hearing an assault of a family member by another member of the child’s family; the child comforting or providing assistance to a family member who has been assaulted; and observing the physical sequellae of assault or damage to property, such as clearing up after such incidents or being present when police or ambulance officers attend an incident involving family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8]
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is 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].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
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)].
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)].
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)].

The police documents

SAPOL were involved in the affairs of the parties, on thirteen occasions, between 4 October 2011 and 31 August 2013. The records take the form of police incident reports, which are recorded in the police computer and allocated an identification number. The records are written in the jargon of the police.
It is of course impossible to ascertain the truth or otherwise of what is recorded in the police record. However, in my view, the records form a useful and independent documentary record of the difficult and turbulent relationship, between the parties, in the period following their separation.
On 4 October 2012, Mr Ortelius attended at Ms Marcus home, when she was out. Ms Marcus reported that her IPhone and digital camera were smashed. Ms Marcus alleged that Mr Ortelius had damaged her property because he was jealous that she had started a new relationship.
The parties both allude to this incident in their respective affidavit material. From the father’s perspective, he alleges that he entered the home because he thought there was something wrong. He gained entry legitimately with a key. He looked at the mother’s camera “out of curiosity” and found a compromising image of the mother, which enraged him.
From Ms Marcus’ perspective, she finds this explanation far fetched, as the camera was concealed in a drawer in her bedroom. She perceives that her privacy was invaded. She categories it as an episode of coercive and controlling violence.
On 16 October 2012, Ms Marcus attended at Mr Ortelius’s home, when a further altercation occurred between them. The police record that

Ms Marcus threw Mr Ortelius’ phone against the wall, upon which Mr Ortelius pushed Ms Marcus into a chest freezer.
On this, Ms Marcus picked up a can of fly spray and hit Mr Ortelius on the head with it, which caused him to place her in a headlock, causing her to choke. Again the parties allude to this incident in their respective affidavit material, both alleging the other precipitated the nasty altercation between them.
The father asserts that the argument concerned Centrelink forms, regarding the children. From the mother’s perspective, the argument was about the father’s use of bad language, in front of the children, particularly that [Y] had begun to refer to her as “a slut”. Interestingly, Mr Ortelius believes that he may possibly have said words, to this effect, to [Y].[9]
[9] See father’s affidavit at paragraph 61
In Ms Marcus’s evidence, she asserts that the father was the aggressor in the incident and she was defending herself, when she hit him on the head with the can of fly spray. The police declined to take any action because they believed that both parties were “in the wrong”.
I am concerned at the suggestion that what I view as a serious altercation, which seems to have occurred in the presence of the children, was initiated by a dispute concerning financial provision for the children.
On 25 December 2012, Ms Marcus complained to the police that she had received a phone call from Mr Ortelius, in which he said he would have “the tattoo cut off of her and she wold be bashed and raped.” Ms Marcus did not apparently request that the police take any further action, in respect of the threat, but wanted it formally recorded.
On 10 February 2013, Ms Marcus complained to the police that Mr Ortelius had verbally abused her regarding her new male partner coming into contact with the children, when she attended at his home to collect the children. She complained that Mr Ortelius had broken her windscreen with a pine post. This incident led to the police obtaining a domestic violence order on Ms Marcus’s behalf.
The parties each have a different view of the incident. The mother asserts that the father became enraged before she had even got out of her car. From the father’s perspective the mother unreasonably demanded the children and, after escalating the argument, refused to leave. This caused him to throw a piece of wood.
On 18 & 19 February 2013, the police record notes that Mr Ortelius is alleged to have breached the intervention order by sending text messages to the mother. In addition, Mr Ortelius is alleged to have come into contact with Ms Marcus at [Y]’s childcare centre and to have telephoned her. On 27 June 2013, Ms Marcus complained to the police that the father had abused and threatened her in a telephone call.
The next police record refers to an incident, which allegedly took place on 5 July 2013. Ms Marcus complained that Mr Ortelius was stalking her, parking his vehicle outside her home. She further alleges that she received a text message, in the early morning of 6 July 2013 as follows:
“What you’re doing is wrong and you have no right to do this and you have dug your own hole. Since you came through my house you will feel my wrath restraining order or not and I will have my sons back and legally I will fuck your life up and with all the complaints to Families SA your gunna lose your kids for good. I haven’t asked but I know its gunna happen. What goes around comes around. Save yourself the pain and give me my boys.”
Mr Ortelius was arrested in respect of this incident and charged with breaching the intervention order issued in respect of Ms Marcus. This incident seems to have followed the incident in which Mr Ortelius was allegedly assaulted, with a beer bottle, by a person associated with the mother.
Both parties allude to the incident in their affidavit material. The mother’s case appearing to be that she had nothing to do with the incident. The father’s case being that he was the victim of a serious and unprovoked assault, which he believes was likely to have been orchestrated by the mother. However, no police records have been produced in respect of this incident.
In the mother’s affidavit, filed in support of her application, she asserts that the end of June, she was advised by police not to allow Mr Ortelius to spend any time with the children “due to the state of his residence and that he was a known drug offender who used and sold illegal drugs.”[10]
[10] See mother’s affidavit filed 31 July 2013 at paragraph 27
The father’s position is that he “sent messages in anger to the mother when she prevented me from seeing my children.”[11] He denies stalking the mother, particularly shining headlight through her window to intimidate her.
[11] See father’s affidavit filed 25 November 2013 at paragraph 119
In between mid June and mid July, the already unacceptable level of tensions between the parties seem to have got out of control. There were no formal orders in place to regulate the care arrangements for the children. In these circumstances each took things into their own hands.
As a consequence of the father’s text messages; the alleged stabbing incident; and what the police allegedly told her; the mother withdrew the children from seeing their father and later enrolled [X] at [N]. In response, the father removed [X] from school and withdrew him from his mother and younger brother. The police were the meat in the sandwich.
On 22 July 2013, the police records indicate that Ms Marcus’ mother, Ms H attended at the [M] Police Station to complain that Mr Ortelius had removed [X] from the [N] School.
This complaint led to the police conducting a welfare check on [X]. They had no other authority to intervene. The police record notes that [X]:
“… was clean, looked healthy, didn’t appear to be stressed at all. [Mr Ortelius]’ advise police he had re-enrolled [X] at [M] School and he would keep [X] for twenty-four days as that is the time that Ms Marcus kept [X] from him.”
A few days after this incident, Ms Marcus initiated the proceedings in court and, as previously indicated, I determined that [X] should be returned to her care.
I appreciate that individuals do not always present well, in court, particularly when they are under stress and are required to represent themselves in the alien environment of the courtroom. However, Mr Ortelius, at the time, was a very angry man. His presentation did not assist his case.
However, to his credit, Mr Ortelius did return [X] as directed. The next police record deals with their involvement in the child’s return. The police record is as follows:
“[Mr Ortelius] attended with child. He was heard by police to say to the child that his mother [Ms Marcus] was a ‘fucking hoare’ (sic) and that he would get his son back no matter not. As he was leaving he said to police ‘… that it was all the police’s fault.’ [Mr Ortelius] was very angry when he drove off. …”

Discussion and conclusions

On any view, the situation between the parties is highly labile. The police records indicate that both parents are believed to have assaulted the other, in the past, and the children have been exposed to behaviour, which clearly constitutes family violence.
In addition, both parties characterise the other as being a poor and neglectful parent, who abuses drugs and who associates with others who do the same. The father is critical of the mother for withholding the children, from him, in June of 2013, abrogating her prior agreement to share the care of the children.
On the other hand, although Ms Marcus concedes that she agreed to Mr Ortelius spending regular periods of time with the children, she was coerced into agreeing to an equal time regime, which from her perspective soon revealed itself as being grossly unsuited for the needs of the children. It is her case that, in these circumstances, she was forced to take action to protect both herself and the children.
The fundamental underpinning of Mr Ortelius’s case, at this interim stage, is that it would be fundamentally unfair to him for the court to accept the mother’s proposition that the only time, which he should spend with the children should be professionally supervised.
It is unfair, on his submission, because the evidence available to the court is both untested and fiercely contested. As such, he asserts that the court must have serious reservations about the parenting skills of both parents.
In such circumstances, he argues that it would be imprudent for the court to place the care of the children almost exclusively in the care of one parent only, particularly given that the uncontested evidence is that there was a shared parenting regime prior to June of 2013.
The mother’s case is that a close analysis of her affidavit material, when coupled with a review of the police documents, reveals an unacceptable risk that the father has subjected her to coercive and controlling violence of a most serious kind. She categorises

Mr Ortelius as a volatile and angry person, who has utilised the children as a means of controlling her.
Ms Marcus asserts that she has been assaulted by Mr Ortelius; stalked by him or his agents; her property has been destroyed by him; and she has been the subject of derogatory comments, by Mr Ortelius, including to the children. It is her case that her withdrawal of the children from Mr Ortelius was an appropriate and protective response to this behaviour.
Given the structure of the Family Law Act, particularly the emphasis the legislation places on protecting parents and children from exposure to family violence, these are allegations which cannot be superficially dismissed. On any view, they are extremely serious matters, which have the potential to cause significant psychological damage to the children concerned, if true.
At this stage, the evidence available to me, clearly provides reasonable grounds, for me to conclude that Mr Ortelius has engaged in some form of family violence. What is more uncertain is whether there are any extenuating circumstances, surrounding this behaviour and the extent to which [X] and [Y] have been exposed to it.
In addition, at this stage, it is impossible to rule out the possibility that Ms Marcus has also engaged in some form of family violence, perhaps equally reprehensible. Although, again, it may ultimately prove to be the case that her behaviour arose as a reaction to the difficult circumstances, in which she found herself.
In all these circumstances, I have no difficulty in reaching the conclusion that the presumption of equal shared parental responsibility should not be applied in the case, at this interim stage. It would not be in the children’s best interests for the presumption to be applied, given the conflicted and violent nature of the parties’ relationship with one another, at present.
[X] and [Y] have lived exclusively with their mother since 6 August 2013 and have not spent any time with their father. This factor dictates that the court should not make any significant changes, in respect of the living arrangements for the children, in the absence of recent and objective evidence regarding their welfare in the mother’s care.
Both parties have serious criticisms of the other’s parenting. These concerns include illicit drug use and serious neglect. However, at this stage, there is no independent corroboration of these complaints, certainly not in respect of the father’s recent criticisms of the mother.
In these circumstances, I propose to make an order that [X] and [Y] continue to live with their mother, pending the final hearing of the case. Given the mutual allegations of serious antisocial behaviour, I have come to the view that it is appropriate that the children concerned should be independently represented in the case.

The more difficult aspect of the case concerns what time Mr Ortelius should spend with the two children and the circumstances surrounding that time. This requires the court to closely consider the two primary considerations arising under section 60CC(2), bearing in mind the pre-eminence to be given to protective concerns relating to family violence.
Exposure to family violence represents a potent threat to the wellbeing of children. It causes them to be fearful, particularly if they observe a well-loved parent being subjected to harm or denigrated. It causes me great concern that Mr Ortelius acknowledges the likelihood he has referred to Ms Marcus, in an insulting and derogatory manner, to the children. In this context, I refer to the police record of 6 August 2013.
In addition, it concerns me that Mr Ortelius, regardless of the rights and wrongs of [X]’s withdrawal from [M] School, elected in response to take matters into his own hands to pay Ms Marcus back tit for tat, asserting he would keep [X], from his mother, for the same period the child had allegedly been kept from him. The child is not an object to be fought over.
On the other hand, it may ultimately prove to be the case that

Mr Ortelius’ behaviour, although liable to serious censure, is found to be reacting to the situation, in which he found himself, and which caused his emotions to boil over. The evidence does indicate that

Ms Marcus too, has found emotional regulation difficult, at times.
Accordingly, it does not seem improbable that both parties have contributed, perhaps to different degrees, to the difficult dynamic between them, which was clearly unsuited to a shared parenting regime [see section 65DAA(5)].
The parties have little empathy for one another and communicate poorly and aggressively, if at all. As such, as the history of their parenting to date demonstrates, they have no capacity to solve parenting problems arising between them consensually or in a child focussed manner. In these circumstances, I have grave concerns as to the impact of a shared parenting regime, for [X] and [Y], on the children themselves.
The mother’s case is that although there was either a substantial and significant or equal time regime for [X] and [Y], in the period following separation in September 2012, such an arrangement was foisted onto her as a consequence of the power imbalance in the parties’ relationship.
Apart from finding that the parties’ relationship was a violent and volatile one to which each contributed to some degree, it is impossible to ascertain the truth or otherwise of this contention on the mother’s part. Notwithstanding this level of uncertainty, in my view, there are worrying indications arising in the case.
Certainly, Mr Ortelius acknowledges that he did not react well to his discovery that the mother was involved in another relationship. As previously indicated, I regard his characterisation of the mother, to the children, seriously, in this context. It is an attempt to turn the children against their mum.
The content of the text message, of 6 July, is threatening. Matters, such as these, are indicative of coercion and control and add to the potency of the mother’s concerns. The reactivity and volatility of the parties’ post-separation relationship causes me grave concern.
It is my fundamental responsibility to make some sort of assessment of the risk Mr Ortelius poses for both the children and their mother, who is currently their principle provider of care. Ms Marcus is entitled to feel safe. If she feels safe she will be better placed to parent the children appropriately. Then I must put in place the regime, which I consider to be commensurate with the degree of risk, if any, I assess Mr Ortelius represents for the family.
I also concede that there are risks of being unduly and unreasonably protective, of the children, and so severing, or at the very least, curtailing, an otherwise worthwhile relationship for the children. A period of two hours per fortnight, after a delay of potentially six months, is not a firm basis on which to reinstate a meaningful level of relationship between the children and their father.
In addition, notwithstanding the good intentions of the organisations which administer children’s contact centres, the calls on such services are many and the environment provided by them necessarily somewhat artificial and institutional. Such centres provide a very different environment to a parent’s home, which is likely to be more relaxed and intimate. Accordingly, the process of supervised time is somewhat stilted in nature.
Notwithstanding my concerns that Mr Ortelius has, in the past, demonstrated a flawed attitude to the responsibilities, incumbent in being a parent and perhaps has not demonstrated a capacity to provide effectively for the children’s emotional needs, the evidence does indicate that he has been a significant person, in the children’s lives, both before and after the parties separated.
Certainly, although he has displayed a possessive attitude towards the children, I accept he loves them. It also seems to be the case that

Ms Marcus has accepted, possibly with some reluctance, that

Mr Ortelius can provide for the children’s day to day needs.
In these circumstances, it would appear more likely than not that both [X] and [Y] know their father well and love him. As such, they are likely to benefit from having a meaningful level of relationship with their father.
I am gravely concerned that a period of supervised time, of only two hours per fortnight, which can only be inaugurated after a wait of eight weeks or so, will not enable the children to benefit from having an appropriate level of relationship with their father.
In my view, there is a very real risk that the children’s relationship with their father can only be weakened by such an outcome, to their ultimate long term detriment. It is not conducive to the children having a meaningful level of relationship with their father.
A parent who denigrates; assaults; or threatens; the other of a child’s parents is not an appropriate role model for that child. Children learn their behaviour from their parents. In this case, it is clearly appropriate that each party be restrained and an injunction issue restraining each of them from abusing, denigrating or otherwise intimidating the other, in the presence or hearing of the children.
In my view, at this stage, the greatest threat to the children comes from the volatility arising from their parents’ relationship and the prior lack of a formalised structure for their care. This seems to have led to a power struggle between them for possession of the children and a jockeying for control with unpredictable results.
These dangers will be ameliorated by a concrete structure for the children to spend time with their father and a regime which prevents the parent coming into contact directly with one another, other than in controlled circumstances. In my view, such a regime, is commensurate with the degree of risk arising from the parties volatile relationship.
In my view, notwithstanding the grave concerns arising from the case, it would be both an over-reaction and potentially detrimental to the children, for the court to move to the professionally supervised regime, advocated by the mother, particularly given the delay arising from its inauguration.
However, in the absence of the presumption of equal shared parental responsibility and given the obvious deficits in the parties’ capacity to work constructively, with one another, any regime for Mr Ortelius to spend time with [X] and [Y] must be gradual and cautious in nature. In my view, in this comparatively early stage, a substantial and significant time regime is out of the question, as is overnight time.
I propose that Mr Ortelius spends time with the children each Sunday from 10:00am until 5:00pm, commencing this forthcoming Sunday, 8 December 2013. In addition, I propose that he spends time with the children, each Wednesday, commencing 11 December 2013 from after school (or 3:00pm if a non-school day) until 6:30pm.
I appreciate that this year Christmas Day falls on a Wednesday and envisage that Mr Ortelius will spend time, with the children, on Christmas Day, unless the parties come to different arrangements, via their respective solicitors.
Although the proceedings remain at an early stage, it is I think appropriate that a date be allocated for final hearing. Currently, the dates available fall in the second half of next year. Such a hearing will provide a forum for the resolution of the various issues in dispute between the parties, if necessary. It seems appropriate that this forum be provided sooner rather than later.
As previously indicated, an order will be made appointing an independent children’s lawyer for [X] and [Y]. As Mr Hemsley, counsel for Mr Ortelius pointed out, the case cries out for such an appointment.
I anticipate that it will take the Legal Services Commission around six weeks to make such an appointment. In these circumstances, I will make arrangements for the case to be listed for directions in late February of 2014. This will provide sufficient time, I hope, for an appropriate expert’s report to be compiled, either at the instigation of the independent children’s lawyer or the direction of the court itself.
It would be best, for [X] and [Y], if they are exchanged between their parents in a neutral, safe and child focussed setting, such as a children’s contact centre. Such a resource is not likely to be easily accessible to the parties, at this juncture. Regrettably, in lieu of such a centre, the parties will be ordered to exchange the children within the foyer of the [M] Police Station.
On my calculations, in 2014, [X]’s birthday falls on a Friday. In these circumstances I propose that Mr Ortelius spend time with both [X] and [Y] from after school until 6:30pm.
Given the serious concerns, raised by Ms Marcus, I propose to continue the injunction earlier made by the court, pursuant to section 68B of the Family Law Act, restraining Mr Ortelius from attending at the mother’s home or the children’s school.
It is implicit, in this decision, that [X] should continue to attend the [N] School. However, this is not an imprimatur for Ms Marcus to change the child’s school in future or to move her residence to such a degree that it will significantly interfere with the father’s capacity to spend time with the children pursuant to these interim orders.
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 one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 9 December 2013

[2013] FCCA 2086

9 December 2013

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies

Standing