Marsden & Marsden
[2015] FamCA 387
•22 May 2015
FAMILY COURT OF AUSTRALIA
| MARSDEN & MARSDEN | [2015] FamCA 387 |
| ||
| Family Law Act 1975 (Cth) s 60CC |
| APPLICANT: | Mr Marsden |
| RESPONDENT: | Ms Marsden |
| INDEPENDENT CHILDREN’S LAWYER: | Messrs Robertson Solicitors |
| FILE NUMBER: | SYC | 6980 | of | 2009 |
| DATE DELIVERED: | 22 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 8 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A- In person |
| SOLICITOR FOR THE APPLICANT: | N/A- In person |
| SOLICITOR FOR THE RESPONDENT: | N Cohen Solicitors |
| INDEPENDENT CHILDREN’S LAWYER | Messrs Robertson Solicitors |
Orders
IT IS ORDERED
The hearing of the parenting dispute between the parents is expedited.
The Independent Children's Lawyer is to forthwith nominate a therapist for the children to attend upon so that therapy may commence forthwith as recommended by the Family Consultant. Each party shall thereafter do all things as may be necessary to ensure the children participate in such therapy.
The Orders made by Senior Registrar Campbell on 12 November 2014 continue pending further order.
All other parenting orders made under the Family Law Act1975 (Cth) and otherwise having effect are suspended pending further order.
I order that a Family Report be prepared by a Family Consultant of the Court. The report to address the matters which will be determined by me in chambers.
The Independent Children's Lawyer is to prepare, as soon as her workload reasonably permits, a list of matters which she suggests the Family Report address and she is to seek each of the parent’s approval for same. The Independent Children's Lawyer is to list any other matters sought by each of the parents which the Independent Children's Lawyer does not support and I will determine that matter in chambers.
Each party and the Independent Children's Lawyer have liberty to restore on short notice to the Court and to the other parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Marsden 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 6980/2009
| Mr Marsden |
Applicant
And
| Ms Marsden |
Respondent
REASONS FOR JUDGMENT
Before the Court is an interim parenting application filed on 3 December 2014 by the father, Mr Marsden, against the mother, Ms Marsden, who is the applicant in the substantive proceedings.
The parties married in 2001 and separated in November 2009. There are three children of the marriage, M born in 2002 (“M”), A born in 2004 (“A”) and V born in 2007 (“V”) (“the children”).
In his application in a case filed on 3 December 2014, the father sought that Consent Orders entered into by the parties and made on 3 February 2011 (“the Consent Orders”) be reinstated, but amended so that the children spend no more than two hours of supervised time with the mother per week.
He also sought that the interim orders of Senior Registrar Campbell on 12 November 2014, which provided that the children live with the mother, be set aside. The Orders of Senior Registrar Campbell provide:
1. Leave is granted to the father to have these matters relisted before me for further interim hearing once an Independent Children’s Lawyer is appointed and information is available concerning appropriate supervision services.
2. The application is otherwise adjourned before me to 21 January 2015 at 10.00 am.
3. UNTIL FURTHER ORDER that the children live with the mother.
4. That pursuant to s 68L of the Family Law Act 1975 (Cth) an independent children’s lawyer be appointed for the children, [M] born … 2002, [A] born … 2004 and [V] born … 2007.
5. That Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.
6. That the Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid NSW of this order forthwith.
7. That each party make available to the Legal Aid NSW forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
8. Having considered seeking advice from a Family Consultant as required by s 11E of the Family Law Act 1975 (Cth), pursuant to s 11F the parties are to attend a meeting or a series of meetings with a Family Consultant nominated by the Child Dispute Section of this Registry as follows:
8.1 the applicant (mother) at 9:00 am on 18 March 2015;
8.2 the respondent (father) at 11:00 am on 18 March 2015.
9. The parties must forthwith attend the Child Dispute Section of this Registry to make appointments to attend an intake event for the Child Responsive Program. The parties must attend all meetings fixed by the Family Consultant and ensure that the children attend all meetings as instructed by the Family Consultant.
10. Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer (if any) and the Court.
11. The Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).
12. Noted that the parties are advised that if they fail to attend any appointment with a Family Consultant or fail to comply with any instructions the Family Consultant gives to a party the Family Consultant must report the failure to the Court and the Court can then make orders as it considers appropriate on its own initiative or on application by a party or the Independent Children’s Lawyer.
The father further sought the following orders by way of his application in a case:
3. That the mother and her legal representative explain to the court why they made representations to the court that the children wanted no contact with the father, are scared when in fact they are aware this is not true from the events of 9th November 2014, and, why they made such representations under oath of an affidavit to the court knowing this was not true.
4. Tha tthe (sic) Family COurt (sic) take appropriate action against the mother and her legal representative for making false statements and representations to the court, by withholding information that the court would cosnider (sic) material in reaching its decision.
5. That the matter be listed urgently before an authority as the children are at significant risk of harm under the current interim order.
6. That the Family Court make an order that the Child Support Agency cease collection fo (sic) Child Support from the Father immediately and any claims by the mother from August 2014 be returned to the father as made fraudulently by the mother.
In his written submissions, filed on 9 April 2015, the father appeared to change his position, stating, in relation to the pending assault allegations against him (which will be discussed later in these reasons):
The court must show caution in the instance the allegation may be true, and hence we have proposed weekend contact on a 100 per cent supervised basis by the Paternal Grandmother or Sister of the Father, both who have been nominated as suitable by the children’s Mother.
Accordingly, I will proceed on the basis that the father’s application in these proceedings was amended, by way of his written submissions filed on 9 April 2015, to seek that the interim orders of Senior Registrar Campbell be set aside so as to allow the children to have supervised weekend time with the father.
The mother, by way of a response to an application in a case filed 31 March 2015, seeks that the father’s application be dismissed. This is supported by the Independent Children’s lawyer (“the ICL”).
BACKGROUND FACTS
On 3 February 2011, the parties entered into final parenting orders by consent (“the Consent Orders”).
The Consent Orders provided that the children live with the father, that the father have sole parental responsibility and that the children spend time with the mother on alternate weekends, Thursday overnights, and for half school holidays and special days. There were also various orders restraining the father from attending the children’s school at changeover times, from moving the children’s residence and school from the D Town area, or from living within a 2km radius of the mother’s home.
The mother alleges that on 27 August 2014 the father assaulted M and A, leaving a bruise on M’s face. The father denies this allegation and says that the bruising could have been caused by M hitting himself or in Rugby training the following night.
On 29 August 2014, following interviews with M and A, the police charged the father with stalking and intimidating, intending to cause fear or physical or mental harm (domestic violence offence), and with common assault in relation to M and A.
On 30 August 2014, a provisional Apprehended Violence Order (“AVO”) was made naming the children as protected persons.
The father has not had any contact with the children since this incident.
An interim AVO was made against the father for the protection of the children at the D Town Local Court on 3 September 2014.
On 16 September 2014, the mother initiated parenting proceedings in this Court seeking that the Consent Orders be discharged, that the children live with her, that she has sole parental responsibility, and that the children spend no time with the father. The mother also sought interim orders that the Consent Orders be suspended and that the children live with her and spend no time with the mother.
In a Notice of Risk filed by the mother on 16 September 2014, the mother alleged that the father has a history of assaulting M and A, and that he engaged in behaviour which constitutes emotional abuse of the children.
On 9 November 2014, the mother called the police following an incident where M physically and verbally assaulted her.
On 12 November 2014, Senior Registrar Campbell ordered that the children commence living with the mother.
On 26 November 2014, an interim AVO was issued against the father for the protection of the children. This AVO remains in force.
On 5 December 2014, the father’s criminal matter was listed for hearing at the D Town Local Court. The matter was part heard. M is currently in the midst of cross examination in those proceedings and that cross examination will continue in June 2015.
Report of the Family Consultant dated 24 April 2015
Ms Salmon, the Family Consultant, identified the key issues in the substantive proceedings as follows:
a.Which parent the children should live with;
b.How much time the children should spend with the parent whom they do not live with;
c.[The mother’s] belief that the children fear [the father];
d.[The father’s] belief that [the mother] is attempting to marginalise him from the children;
e.The children’s wishes and the weight to be placed on these;
f.[M’s] anti-authoritarian behaviour ;
g.Length of time that the children have not seen [the father];
h.Acrimony and lack of communication between the parents.
The Family Consultant outlined that M had said that he did not wish to see his father because when he had lived with the father, the father had physically and verbally abused him. M reported that he felt scared when he lived with the father, and described that being a witness in the assault case was a traumatic experience which further damaged their relationship.
M told the Family Consultant that he currently was seeing the school counsellor and feels that they have established a connection.
A also said he wanted to live with the mother because, as outlined by the Family Consultant, “she is calm and does not hit him or [M].” A said that the father sometimes “went crazy” and that he “yelled daily, like it was nothing, and hit us like it was an average thing to do”.
V told the Family Consultant that she did not want to live with the father, that she was scared of him and that while the father did not hit her, she saw him hit her brothers and was scared he would eventually do the same to her.
The Family Consultant then outlined the views of the parties, namely; that the father denies hitting the children and accused the mother of having “poisoned them” while the mother believes the children are unsafe in the father’s care.
The Family Consultant opined, in relation to the co-parenting relationship between the parties, that there appears to be a “deep element of mistrust” between them and that each one believes the other is undermining their relationship with the children. As a result, the children have experienced ongoing hostility between their parents and major changes to parenting arrangements. She described that there is serious family dysfunction and that both parents suffer from a possible personality dysfunction.
The Family Consultant outlined that there were aspects to this matter which brought into question each parent’s ability to manage the children’s behaviour, particularly that of M, and respond to their children’s emotional needs.
The Family Consultant reiterated that the children are currently estranged from the father and all expressed a wish not to see him. A full assessment of the origin of these wishes, and the weight to be placed on them, is needed.
The Family Consultant opined that given the extent of the deterioration between the children and the father, therapy would be the preferable context for a reunion and if appropriate, a restoration of the relationship. However, the children’s safety must remain a priority.
In terms of recommended future directions, the Family Consultant stated that this matter would benefit from a full expert assessment in relation to child and family mental health. She also opined that the family would benefit from the matter being expedited, because as time passes, it is likely that the children will become further estranged from the father.
The Family Consultant recommended that therapy be commenced immediately in order to assess the family dynamics and potential for reunification between the children and the father.
The father
Father’s affidavit sworn 12 November 2014
In his affidavit, the father outlined the children lived with him from the making of the Consent Orders on 3 February 2011 to August 2014 when the alleged assault took place.
The father deposed that he has been in a relationship with Ms G (“Ms G”) since January 2014.
The father asserted that when the children were living with him they would be tired and unwell after returning from spending time at the mother’s home.
The father deposed to his belief that the children were “very happy” when in his care.
With regard to the mother’s allegations that the father assaulted M on the morning of 27 August 2014, he deposes that following a verbal argument between him and M after he confiscated M’ laptop, M began “screaming uncontrollably and hitting himself in the face”. The father acknowledged that later that night, M made a statement to the police that the bruise was caused by the father punching him in the face, but asserted that this contradicts other statements later made by M.
The father said that he had grabbed M’s hands to stop him hitting himself in a tantrum and denies striking M in the face with a closed fist. The father stated that the bruises may have occurred from M hitting himself, or from his Rugby training the following night.
The father also denies hitting or punching A.
The father accused the mother of coaching the children. He said that the children have said to him words such as “Mum told us she had to leave the marriage because you used to bash us when we were babies”.
Annexure C to the father’s affidavit is a letter to the father from the Child Support Agency dated 17 September 2014 stating that the Agency had “recently received information” that he had zero per cent care of the children from 3 September 2014. The letter then advises that his current ongoing child support payment is $3,529 per month. The father deposed that he did not receive any money by way of child support when the children were in his care.
Also annexed to the father’s affidavit is a father’s day card from A on which it is written“thanks for being a great Dad!” The father deposed that this card was left for him at the school office after the alleged assault.
At the conclusion of his affidavit, the father deposes:
I am extremely prejudiced by the suspension of the children from my care on the basis of these unproven and untested allegations. The rent is $3300 per month as I need to accommodate the children in a full time living arrangement. My monthly income is $7700 per month. If I contnue (sic) to pay the rent of $3300 and child support of $3600 per month, I am unable to afford the basic living requirements to look after myself, or afford legal representation in the criminal or family matters.
Father’s affidavit sworn 3 December 2014
In this affidavit, the father sets out evidence of various incidents between M and the mother which culminated in the involvement of the police.
Annexure A to the father’s affidavit is the police report relating to M’s assault of the mother on 9 November 2014. The police report sets out the details of the incident, which begun following a verbal argument between the mother and M regarding his use of the laptop. It states that M called his mother “a fucking bitch” and punched her on the right arm. It states that M told his mother “I want to fucking kill you” and that the mother had to prevent M from walking toward the kitchen before calling the police. It is outlined in the report that the mother told the police M was becoming increasingly violent and that she feared for her life. The mother requested the police to take M to the hospital for mental health related issues.
It is also outlined in the police report that M told the police to “fuck off” and “constantly refused direction”. M told the police he did not want to live with his mother and preferred to live with his father (despite an AVO being in place at that time.)
At the conclusion of the report, the writer says:
My concerns regarding the children are: That [M’s] behaviour may escalate in more severe behaviour, including assaulting his mother and siblings.
The children’s physical and emotional state appears to be fine, [M] was upset and had low and high mood swings. [M] appears healthy…
The report states:
The [mother] is known for previous domestics with her ex partner…
….
Police fear [M] may become aggressive and non-compliant which will result in a possible assault against the [mother].
The father also deposed of an incident that took place over a year prior to the above assault, on 13 October 2013, when M ran away from the mother whilst in her care. The police report annexed to the affidavit states:
[The mother] state (sic) that her son 11yr old [M] ran away from her and headed towards [H] trainstation (sic). [The mother] is concerned for his welfare cause he is only 11yrs old…Last seen about 10m ago.
Also annexed to the father’s affidavit is a police report of an earlier incident on 29 May 2013, when M again ran away from the mother whilst in her care and telephoned the father. The report outlines:
Police spoke to the [mother] and she stated that [M] was not doing as he was told and he had called his father. Upon police arrival [M] was sitting in the front seat of the [mother’s] vehicle refusing to go out. The [mother] stated that she tried on numerous occasioning (sic) for him to go inside. [M] had wet himself on the front seat of the [mother’s] vehicle.
Police spoke to [M] the ten year old and does not like staying with his mum….
[M] has contacted his father for him to come and get him.
I note that the police report states, in relation to the police’s observations when attending the mother’s home with respect to this incident:
Upon arrival checked on the welfare of the children and they appeared to be clean and well cared for.
With relation to child support, the father annexed a letter to his then employer dated 12 November 2014 with the heading “Child Support Deductions” and notifying the employer that from 15 December 2014, the amount of $5,457.75 is to be deducted from his earnings (with the exception of protected earnings of $1,475.04 per month) per month by way of child support payments.
Father’s affidavit sworn 6 March 2015
In this affidavit, the father reiterated his belief that the mother fabricated the allegations against him and coached the children.
Annexed to this affidavit is the transcript of the hearing of the criminal proceedings before the D Town Local Court on 5 December 2014 (“the court transcript”).
The father referred to the mother’s statements in relation to the assault, outlined on pp 9 and 10 of the court transcript, where she says she was “not sure what day of the week” the assault took place and that “[M] told me when all this happened”. The father asserted that this contradicts the mother’s version of events, as outlined later in these reasons, in her affidavit in these proceedings that it was V who told her about the alleged assault. The father stated that there was “great confusion” exhibited by the mother in her cross examination in the criminal proceedings.
The father also accused the mother of using physical discipline on M. At p 48 of the court transcript, the mother admits to “smearing cheese” on M’s face as a punishment for threatening to jump over a balcony, and at p 78, the mother admits to slapping M on the leg when he was trying to get out of a moving vehicle.
The father also referred to evidence from a teacher at M’s school, Ms I, shown at p 73 of the court transcript, that she did not observe bruising on M’s face on 27 August 2014, being the day of the alleged assault (which was alleged to have taken place in the morning before school):
Q: On….27 August 2014, you’d noticed no bruising to his face?
A: No. His head was down on the desk and I didn’t see a bruise.
Q: He may not have had a bruise?
A: Yeah.
Ms I gave evidence that she noticed the bruise the next day, on Thursday 28 August 2014.
At p 15 of the court transcript the following exchange occurs between Ms J, the principal of M’s school, and the prosecutor regarding a conversation between Ms J and M on 29 August 2014:
Q: What did you see?
A: I noticed a bruise on [M’s] right cheek.
…
Q: Was there any conversation in relation to that observation?
A: I did ask him; I said, “There’s a bruise on your face; what happened” And he said he couldn’t recall what happened.
In cross examination Ms J clarified that M had probably said “I don’t remember” rather than “I couldn’t recall.
At p 27 of the transcript, there is the following exchange between Ms K, a teacher at M’s school, and the prosecutor in relation to a conversation between Ms K and M on 28 August 2014:
Q: …you’ve indicated a bruise to the right cheek [of M]. Was there any conversation in relation to that?
A: Only that he didn’t know what had happened.
Q: What did he say?
A: He said that he had only just noticed it himself. So, he didn’t know what had happened.
The father deposes, at paragraph 14 of his affidavit of 6 March 2015, that it was his belief that the bruising on M may have occurred at Rugby League training on Tuesday or Thursday, or by M hitting himself when angry. He refers to the following statements of the wife in her cross examination at the local court, as set out at p 57 of the court transcript:
Q: …How many times do you think today, looking back, that your eldest child, [M], has told very significant lies about you?
A: Many times.
Q: They range from quite serious assaults; correct?
A: Yes, sir.
Q: Have you ever seen him strike himself?
A: Once.
The father asserts, at paragraph 18 of his affidavit, that M does not want to live with the mother, referring to p 83 of the transcript, being the cross examination of the mother in relation to the incident on 9 November 2014 when M was taken to the police station:
Q: [M] said he didn’t want to live with you anymore?
A: Yes.
Q: He was quite critical of you to the police?
A: Yes.
Q: He was calling you names?
A: Possibly.
Page 82 of the transcript records the following from the mother’s cross examination:
Q: You indicated to the police that you were in fear of your life from your son who was becoming increasingly violent?
A: He was, yes.
Q: But did you (sic) words like you feared for your own life from this kid?
A: Yes, he went into the kitchen and started looking for knives.
The father also refers to p 83 of the court transcript, also from the mother’s cross examination?
Q: You have noticed in recent years that [A] is starting to go the same way as [M]?
A: He’s just – if [M] does something, like not go to school, [A] will just copy, will copy his brother.
Q: He tends to mirror?
A: Yes.
At the conclusion of his affidavit, the father deposed to having had no contact with the children for eight months.
Father’s affidavit sworn 6 March 2015
In his most recent affidavit, the father denies the mother’s allegations that he has forced the children to eat foods which make them ill and that the children are terrified of him.
The father inserted extracts of email correspondence between him and the mother from February 2012 to July 2013. In response to concerns raised by the mother regarding the deterioration in M’s behaviour and his psychological problems, the father stated, in an email to the mother on 1 July 2013:
I don’t believe [M] has any issues and he is great at home, school and an all round good kid. He only seems to have issues with you.
The father also states in the email:
I want things resolved between yourself and [M] so you can have a decent relationship moving forward and this constant battle won’t achieve this.
Ms L’s affidavit sworn 6 May 2015
Ms L (“Ms L”) is the father’s older sister.
She deposed that A, M and V are the only cousins of her two children, M (nine years old) and N (ten years old). She outlined that until the children stopped spending time with the father in August 2014, her children and the children would see each other almost every weekend.
She stated that “I miss my niece and nephews terrible and so do my children.”
Ms L deposed to observing the father to be both caring and loving with the children when they were in his care.
Ms L asked the Court to allow her and her husband to supervise the children, and says that they would be able to have the children from Friday after school and drop them back on Sunday nights.
Paternal grandmother’s affidavit sworn 8 April 2015
In her affidavit, the paternal grandmother deposed to having had a “great and very loving relationship” with the children.
The paternal grandmother says that she has not had any contact with the children since August 2014. She opines that the children should be able to have a relationship with their paternal family, including their cousins who are of similar age.
The paternal grandmother stated that she and all members of her family are prepared to act as supervisors.
The paternal grandmother moved the Court to make orders that the children be placed in her care on weekends from the end of school until Monday mornings.
Ms G’s affidavit sworn 8 April 2015
Ms G deposed that she has been in a relationship with the father since January 2014.
She stated that she has a “special bond” with V and would help the father with caring for the children.
She observed a “great and very loving relationship” between the children and the father in the eight months preceding the incident on 27 August 2014.
With regard to the allegations by the mother regarding the incident at the D Town Police station on 11 March 2015, Ms G deposed that she and the father had entered the police station so that she could use the bathroom, and were unaware that the mother and the children were there at the same time. She denied seeing the mother in the lobby of the police station and said that at no time did she hear the conversation between the father and the police officer. Ms G stated that there was “no way” that the father would have acted in a way to scare or upset the children.
Affidavit of Ms O sworn 12 November 2014
Ms O (“Ms O”) was the children’s carer on a full time basis while they lived with the father.
She deposed that she did not believe the father hit the children as alleged and that even on the afternoon of the alleged assault, she saw the children running to the father and hugging him when they arrived home. She stated that there were no bruises or injuries on the children and they did not make any complaint to her about any issues.
Ms O stated that if the children were allowed to return to the father’s home every weekend she, or alternatively, Ms L and her husband, would be available to supervise the children the entire time.
The mother
Mother’s affidavit sworn 15 September 2014
The mother set out evidence in this affidavit relating to the alleged assault of M and A by the father on 27 August 2014.
She deposed that she was informed by V on 29 August 2014 that the father had punched M and A due to a pillow that was left on the floor. The mother stated she immediately contacted the police to report the incident, and whilst they were waiting for the police to arrive, the father approached her home, beeped the horn of his car and demanded to speak to M. The father drove away after a few minutes.
The mother asserted that M and A, during the police interview which she attended with the children on 27 August 2014, told the police that the father punched M in the right cheek with a closed fist and called him a “fucking little cunt” and “lazy little shit”. According to the mother, the children also told the police that the father then hit A in the right cheek, although it did not leave a mark on his face.
The mother stated that the children have told her that there has been a history of the father belting them and beating them with a strap on previous occasions.
The mother deposed that on or about 1 September 2014, M told her words to the effect of:
I feel weird, are we going to see Dad again? It happens so quick, I don’t want to go back, it just feels weir (sic). I just want to play with my laptop because it makes me not think about it. I don’t want to think about it anymore, I cannot sleep and I cannot stop thinking about it. I just want to stay here forever.
The mother also stated that since the incident, V has appeared to be anxious and scared, and has said to her words to the effect of “promise me, you are not going to leave me”.
The mother asserted that in the six months leading up to the incident in August 2014, M had complained to her about the father and said to her words to the effect of “Mum, I hate it there, please don’t make me go back.
The mother said that in the months preceding the incident in August 2014, she has observed M to be increasingly violent and aggressive in his behaviour, including assaulting his brother, A. She said that since the children came into her care, they have stopped being violent.
The mother asserted that the children are also afraid of the father’s family, particularly his younger brother and the paternal grandfather. She said that the children have complained to her about an incident where the paternal grandfather physically threw V across the room in the presence of A.
The mother also deposed to an incident in December 2014 where V became tense and started to cry after seeing Ms O at M’s graduation.
Mother’s affidavit sworn 15 September 2014
In her most recent affidavit, the mother deposed to conversations she has had with the children about incidents that occurred when they were living with the father. This includes the father forcing them to eat foods that they did not like.
The mother asserted that V has told her that she has recurring nightmares of the father trying to drown her and to hurt her.
The mother also set out evidence of the incident between her and M on 9 November 2014. She says that M started to act aggressively toward her when she attempted to place boundaries on his behaviour. When M started to indicate he would hurt her and his brother, she called the police, which resulted in the police making an AVO for her protection.
The mother stated that during the criminal and AVO proceedings at the D Town Local Court, M and A said to her, in relation to the father’s proposal for supervised visits, “You can’t make me go, I won’t go” and V said “I’m scared mummy”.
From about February 2015, M has been seeing a paediatrician, Dr P, who diagnosed M with post-traumatic stress disorder and prescribed him with a low dose of anti-depressant/anti-anxiety medication. The mother said that she has observed a significant change to M’s behaviour since he started taking the medication; namely, that he has not had aggressive outbursts and has become more cooperative.
With relation to A, a letter annexed to the mother’s affidavit from Dr P to A’s general practitioner reported that A finds it very difficult to sleep at night and more recently, has started to mimic the behaviours of M, including refusing to go to school. The letter notes that A seems to be very much attached to his brother, and that A had told Dr P that he didn’t want to do anything that his brother wasn’t doing. Dr P opined that A was “extremely anxious” and he suggested a trial of anti-anxiety medication.
The mother then set out evidence of an alleged incident between her, the children and the father whilst the attended at the D Town Local Court on 11 March 2015. She stated that the father stood in front of the room at the police station and intimidated them by staring at them through the breaks of the venetian blinds, making them uncomfortable and distressed.
The mother deposed that M fears travelling alone on public transport and has recurring nightmares since giving evidence in the criminal proceedings against the father.
Ms Q’s affidavit sworn 7 April 2015
Ms Q, a clinical psychologist, swore an affidavit in support of the mother which annexed copies of notes she made in appointments she had with the children on 30 September 2014. The notes are difficult to read and were not specifically referred to in submission.
Submissions
Independent Children’s Lawyer
The ICL confirmed in oral submissions that she had seen the children and that her observations were consistent with those made by the Family Consultant.
The ICL submitted that there were significant issues which would lead the Court to have significant concerns about any contact taking place between M and A with the father.
The ICL noted that when she had raised with the father the question of whether he could contribute to the cost of a Chapter 15 Expert Report (the mother being legally aided) the father indicated had that he is not in the financial position to do so. The ICL supported the submissions of the mother that given the father’s capacity to instruct senior counsel in the criminal matter, the Court should have doubt about his alleged inability to contribute to the cost of an Expert Report in these proceedings.
There was a question raised by the ICL as to whether the matter should be placed into the Magellan list in circumstances where there are allegations of an assault by the father on M and A, and also an admission by the mother in the transcript of the local court proceedings that she has physically disciplined M.
The ICL raised significant concerns about M’s mental health and also for that of A. He said that V appears to be the most robust of the children.
The view of the ICL was that whilst M is in the midst of cross examination, he should not be spending time with his father. The ICL supported the expedition of the proceedings, but noted that the evidence in the criminal proceedings must be concluded before the hearing in this Court can proceed.
The ICL outlined that, given the report of the Family Consultant and her own observations, it would be very useful for a Family Consultant who is a psychologist with expertise in mental health issues to assess this family unit in circumstances where there may not be an Expert Report.
The ICL supported the mother’s proposed orders for the dismissal of the father’s application.
The father
The father submitted that the mother’s conduct prior to the making of the Consent Orders; namely, in bringing numerous applications alleging physical abuse by the father, should be a cause of concern to the Court. He submitted that the Court should be doubtful of the veracity of the mother’s allegations of abuse given that despite bringing the applications referred to above, the mother ultimately entered into Consent Orders which provided that the children would live primarily with the father and that the father would have sole parental responsibility for the children.
The father submitted that during the four years in his care after the making of the Consent Orders, the children had lived harmoniously with him and did not make any complaints regarding alleged abuse by him, despite assertions to the contrary by the mother.
The father outlined that when M was in his care, he had refused to see his mother after his mother commenced a new relationship.
The father submitted that the mother was unable to adequately parent the children or address their psychological needs.
The father asserted that the children, when in his care, had a good relationship with both the paternal and the maternal families.
He accused the mother of concocting the assault allegations against him and referred to the evidence of teachers in the local court transcript, which is outlined earlier in these reasons. He described that the teachers had different accounts of when they saw the bruise, but gave consistent evidence that M informed them he could not remember how the bruise occurred.
The father also submitted that the mother’s evidence of the alleged assault was inconsistent and confused.
The father referred to M’s statements to the police, prior to the charges being pressed by the police, that he wanted to return living with the father.
The father outlined that he and his family have had no contact with the children since the events of August 2014, and submitted this was the result of the mother deliberately alienating the children from him and his family. He said that the children’s views of the father, and their previous carer, have become increasingly negative even though he has had no contact with them and therefore could not have contributed to this change in attitudes.
The father acknowledged that the best interests of the children take priority. It was his position that, in light of the pending criminal proceedings, telephone and supervised access was reasonable. He referred to the affidavit of Ms L, and indicated that the mother in previous proceedings had stated she was satisfied for Ms L and her husband to act as supervisors. He submitted that if he is unable to spend time with the children, it will cause further deterioration and damage to his relationship with them. Time with the father, it was submitted, is necessary to ensure the rebuilding of the relationship between the father and the children.
The father submitted that he did not have the funds to contribute to the cost of an Expert report. When I asked questions regarding his employment and income, the father stated that he was a commercial real estate agent and earned approximately $200,000 per annum, not including any commissions payable. He stated that these proceedings have left him “absolutely broke”. He said that he was able to instruct Mr Terrancini as his Counsel in the criminal proceedings because he was known to his family, and therefore was being retained on lower than his usual rates. The father submitted that the majority of his income is applied toward child support payments and income tax. The father has not filed a financial statement in these proceedings.
The mother
The solicitor for the mother drew the Court’s attention to the views of the children, as outlined in the Family Report, particularly their statements that they did not want to live with their father and their statements regarding abusive conduct by him.
It was submitted that the incident where the mother admitted to physically disciplining M took place many years ago, when he was eight years old.
The mother’s lawyer outlined that the mother does not regard the father’s family as suitable supervisors, particular in light of the current climate.
It was submitted that the father’s day cards from the children after the alleged assault were written upon the request of the school and without the knowledge of the mother.
It was asserted that given the serious matters raised by the Family Consultant and that there is an ongoing AVO, the father should not spend any time with the children.
The mother’s lawyer cast doubt on the father’s assertion that he could not afford to contribute to the costs of an Expert Report given his capacity to instruct senior and junior counsel in the criminal matter.
It was submitted that the matter should be expedited due to the serious issues between the parties. Further, it was submitted that there should be an order to confirm the Orders of Senior Registrar Campbell and the no contact arrangements regarding the father should remain in place.
determination
It is very complex and difficult to determine an interim parenting application. The Court is able to find some guidance in the report from the Family Consultant. She has identified the issues as set out in these reasons. Those identified issues highlight the complex nature of the case. The Family Consultant recommends the matter be expedited. She recommends that the children be engaged in immediate therapy.
M has been diagnosed as suffering from post-traumatic stress syndrome and is being medicated. The mother reports an improvement in his behaviour. A has been diagnosed as having an anxiety problem.
All the children are refusing to see the father even under a supervised arrangement.
M is currently experiencing the cross-examination of one of the country’s leading criminal senior counsel as he is giving evidence in the ADVO and criminal proceedings being conducted in the local court. The father is defending those proceedings.
The current circumstance of the children is somewhat bewildering given that they have lived with the father for a number of years pursuant to the Consent Orders.
Witnesses called by the father, including a nanny who assisted in the care of the children whilst they were in his care, speak in glowing terms of the children’s relationship with the father and of his parenting of them. Likewise do the family members called by the father.
Section 60CC of the Act requires the Court to have regard to a primary consideration of the benefit of the children having a meaningful relationship with both parents. It also requires the Court ensure the need to protect the children from harm and being exposed to abuse or family violence. The mother’s case is that the children have complained of suffering from the father’s parenting style which includes yelling, physical chastising of an extreme type and offensive belittling and denigration of the children.
M is now 13 years of age. His views, subject to advice about his maturity and cognitive capacity, will be given significant weight. He is at an age where he could dictate where he lives because there is always an underlying consideration that he could elect to change residence and put that into place without assistance of either parent. He has already run away from his mother’s house.
I agree with the Family Consultant that there is an urgency aspect to this case. The father has had no contact with the children since last year. Their relationship with him will probably change because of that length of time of not seeing him.
There are concerns about the mother’s parenting capacity raised by a number of pieces of evidence before the Court.
I propose therefore to order the hearing be expedited. I propose to order the preparation of a family report. I will not at this time change the Orders made by the Senior Registrar which means there will be no order for the children to spend time with the father. The proceedings in the local court will not conclude until at least June this year.
I make the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2015
Associate:
Date: 22 May 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Costs
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