MAYNARD & FRYE

[2016] FCCA 2623

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYNARD & FRYE [2016] FCCA 2623

Catchwords:
FAMILY LAW – Interim Parenting – 2 children aged 10 and 4 – best interests – allegations of family violence – father alleges mother physically abused older child – mother alleges father coercive and controlling – whether unacceptable risk of harm – benefit of meaningful relationship – parental ability to foster relationship between children and other parent – children to live with mother – children to spend time with father.

Legislation:

Family Law Act 1975, ss.4AB, 13C, 60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

Goode v Goode (2007) 36 FamLR 422

Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69 at 77
Mazorski & Albright [2007] FamCA 520
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

SS v AH [2010] FamCAFC 13

Applicant: MS MAYNARD

Respondent: MR FRYE

File Number: PAC 3231 of 2016

Judgment of: Judge Obradovic

Hearing date: 10 October 2016

Date of Last Submission: 10 October 2016

Delivered at: Parramatta

Delivered on: 3 November 2016

REPRESENTATION

Appearing for the Applicant: Ms Elve

Solicitors for the Applicant: Auslawyers

Counsel for the Respondent: Mr Daniel

Solicitors for the Respondent: City Lawyers and Consultants

PENDING FURTHER ORDER THE COURT ORDERS:

1. That the parents have equal shared parental responsibility for the children:

   (a)X born on (omitted) 2006; and

   (b)Y born on (omitted) 2012.

2. That the children live with the mother.

3. That the children spend time with the father as follows:

   (a)During the school term, commencing on the first Friday after the making of these orders and each alternate week thereafter from after school or 3.15pm on Friday until 5pm on Sunday; and

   (b)During the school term, commencing on the second Wednesday after the making of these orders and each alternate week thereafter from after school or 3.15pm on Wednesday until before school or 9am on Thursday.

   (c)For one half of each NSW school holiday period, for the first half in even numbered years and the second half in odd numbered years;

   (d)In the event that the children are not in the father’s care on (omitted), the children shall spend time with the father during the (omitted) period, with the father to give the mother 14 days’ notice of the dates.

4. That the children speak to the father on the telephone each Monday they are not spending time with him at 6pm and for the purposes of facilitating such telephone communication the father shall telephone the mother’s mobile phone number at such times and the mother shall ensure that her mobile phone is turned on and charged at such times. 

5. That for the purposes of changeover, the father shall collect the children from their school or pre-school at the commencement of the time the children are to spend time with the father, and the father shall deliver the children to their school or pre-school at the conclusion of such time. If the children are not attending school on any particular day that they are to spend time with the father, the father shall collect the children from and deliver the children to the mother’s residence.

6. Pursuant to s68B of the Family Law Act1975 the mother is restrained by injunction from:

   (a)physically disciplining the children or either of them;

   (b)assaulting, molesting, harassing or threatening the children or either of them; and

   (c)engaging in conduct that intimidates the children or either of them.

7. Pursuant to s68B of the Family Law Act1975 the father is restrained by injunction from:

   (a)physically disciplining the children or either of them;

   (b)engaging in conduct that intimidates the children or either of them; and

   (c)installing, using or maintaining any optical surveillance device within any premises, vehicle or on any other object to record visually or observe the carrying on of any activity involving the mother and/or the children.

8. Each of the parents is restrained from denigrating any member of the other’s household in the presence or hearing of the children or any of them or permitting or allowing any member of the parent’s household to do so.

9. Each party shall ensure the other is notified immediately of a medical emergency relating to either child requiring hospitalisation or urgent medical treatment.

10. Both parties shall ensure that the children’s school are provided with all necessary consents for both parties to communicate with the school in relation to the children, receive all correspondence in relation to the children and participate in or attend any school event in which parents are entitled to participate in or attend.

11. The father shall not prevent the children from attending any activity at their school or whilst in the mother’s care that is related to a faith other than the (omitted) faith.

12. The parties shall communicate via text message or email only in relation to the children.

13. The father be permitted to take the children to the (omitted) Church when the children are in his care.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of Uniting Counselling and Mediation for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the “Keeping Contact Parenting Orders” program offered by that organisation and subject to the assessment of suitability each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete such program.

2. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9am on 23 March 2017.

   (a)The parties shall continue to attend at such times, dates and places as the consultant may advise;

   (b)The parties and each of them shall do all things necessary to ensure the attendance of their children the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;

   (c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:

   (i)     Any agreement reached between the parties;

   (ii)    The issues raised by the parties and which will require determination by the Court;

   (iii)     Any views or opinions expressed by the children interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;

   (iv)   Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

3. Pursuant to s.68L of The Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, X born on (omitted) 2006 and Y born on (omitted) 2012 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

4. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by the parties in these proceedings together with all existing Orders and copies of any relevant reports.

5. The matter is listed for further directions at 11.30am on 6 April 2017.

6. Liberty is granted to the parents and the Independent Children’s Lawyer to apply to have the matter re-listed on 7 days’ notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3231 of 2016

MS MAYNARD

Applicant

And

MR FRYE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are Reasons for Judgment in respect of an interim parenting application regarding the two children of the parties:

   a)X born on (omitted) 2006; and

   b)Y born on (omitted) 2012.

2. After the parents separated on 15 January 2016, the children have been living with the Respondent father and have had very limited time with the Applicant mother.

3. The mother relied upon the following documents:

   a)Initiating Application filed 14 July 2016;

   b)Notice of Risk filed 14 July 2016;

   c)Affidavit of Ms Maynard filed 14 July 2016; and

   d)Affidavit of Ms Maynard filed 7 October 2016.

4. The father relied upon the following documents:

   a)Response filed 6 October 2016;

   b)Notice of Risk filed for October 2016;

   c)Affidavit of Mr Frye filed 20 September 2016; and

   d)Affidavit of Mr Frye filed 6 October 2016.

The Law

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

5. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

6. In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.

7. It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in

   [3] Ibid at [122]

8. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

9. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]

   [6] s61DA(3)

10. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]

    [7] MRR v GR [2010] HCA 4 at [15]

11. The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application.

    [8] (2007) 36 Fam LR 422, (2006) FLC 93-286

12. As stated by the Full Court in Keats & Keats:[9]

    …the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

    [9] [2016] FamCAFC 156 at [9]

Competing proposals

1. The father seeks orders as follows:

   a)That the father have sole parental responsibility for the children;

   b)The children live with the father;

   c)The children spend time with the mother each Tuesday from 3pm to 6pm and each Saturday from 12 noon to 6pm; and

   d)That the mother does not change the name or religion of the children from the (omitted) faith.

2. The mother seeks orders as follows:

   a)That the mother shall have sole parental responsibility for the children;

   b)That the children shall live with the mother;

   c)That the children shall spend time with the father as follows:

   i)Each alternate Friday from 3.15pm until Sunday at 5.00pm commencing the first Friday following the making of these orders;

   ii)Each alternate Wednesday from 3.15pm until the commencement of school until the following day commencing the second Wednesday following the making of these orders;

   iii)For one half of each New South Wales school holiday period, for the first half in even numbered years and the second half in odd numbered years;

   iv)In the event that the children are not in the father’s care on (omitted), the children shall spend time with the father during the (omitted) period, with the father to give the mother 14 days’ notice of the dates.

   d)That the father shall have telephone contact with the children by the father telephoning the mother’s mobile phone number each Monday at 6.00pm or at other such times as agreed, or requested by the children.

   e)That for the purposes of changeover, the father shall collect the children from their school at the commencement of his time and the father shall deliver the children to their school at the conclusion of his time. If the father’s time falls on a public holiday, school holiday or on a weekend, changeover shall occur at the McDonalds restaurant car park on the corner of (omitted) and (omitted).

   f)That the mother be permitted to enrol the child X to a school close to her residence and the child Y into a day care close to her residence.

   g)That the father shall forthwith remove all cameras from the children’s bedroom in his unit and the father shall not install any cameras in either child’s bedroom, bathroom or any other room which the children play or sleep at any time in the future.

   h)That the father shall destroy any video footage he has of the children recorded on the cameras he installed in his unit.

   i)That each party shall ensure the other is notified immediately of a medical emergency relating to either child requiring hospitalisation or urgent medical treatment.

   j)That both parties shall ensure that the children’s school are provided with all necessary consents for both parties to communicate with the school in relation to the children, receive all correspondence in relation to the children and participate in or attend any school event in which parents are entitled to participate in or attend.

   k)That neither party shall denigrate the other party in the presence or hearing of the children and each party shall ensure that no third party denigrates the children in the presence or hearing of the children.

   l)That neither party shall physically discipline the children.

   m)That both parties shall ensure that there is proper sleeping arrangements for both children at their respective houses.

   n)That the father shall not prevent the children from attending any activity at their school or whilst in the mother’s care that is related to a faith other than the (omitted) faith.

   o)That the parties shall communicate via text message or email only in relation to the children.

   p)That the father be permitted to take the children to the (omitted) when the children are in his care.

   q)That the father shall forthwith return the children’s birth certificates, citizenship certificates and passports to the mother.

3. The mother seeks orders in the alternative as follows:

   a)That the children shall spend time with the mother as follows:

   i)Each alternate Friday from 3.15pm until the following Monday before the children commence school, commencing the first Friday following the making of these orders.

   ii)Each Tuesday from 3.15pm until the following day commencing the second Tuesday following the making of these orders.

   iii)For one half of each New South Wales school holiday period, for the first half in even numbered years and the second half in odd numbered years

   b)That for the purposes of changeover:

   i)The mother shall collect X from school at the commencement of the mother’s time and deliver X to school at the conclusion of the mother’s time.

   ii)The mother shall collect Y from and deliver to the front of (omitted) at the commencement and conclusion of her time with the children.

   c)That the mother shall have telephone contact with the children by the mother telephoning the father’s mobile phone number each Tuesday and Thursday at 6.00pm or at other such times as agreed, or requested by the children. The father shall ensure the children have privacy when they are having telephone contact with the mother.

   d)That the father shall forthwith remove all cameras from the children’s bedroom in his unit and the father shall not install any cameras in either child’s bedroom, bathroom or any other room which the children play or sleep at any time in the future.

   e)That the father shall destroy any video footage he has of the children recorded on the cameras he installed in his unit.

   f)That each party shall ensure the other is notified immediately of a medical emergency relating to either child requiring hospitalisation or urgent medical treatment.

   g)That both parties shall ensure that the children’s school are provided with all necessary consents for both parties to communicate with the school in relation to the children, receive all correspondence in relation to the children and participate in or attend any school event in which parents are entitled to participate in or attend.

   h)That neither party shall denigrate the other party in the presence or hearing of the children and each party shall ensure that no third party denigrates the children in the presence or hearing of the children.

   i)That neither party shall physically discipline the children.

   j)That both parties shall ensure that there is proper sleeping arrangements for both children at their respective houses.

   k)That the father shall not prevent the children from attending any activity at their school or whilst in the mother’s care that is related to a faith other than the (omitted) faith.

   l)That the parties shall communicate via text message or email only in relation to the children.

   m)That the father be permitted to take the children to the (omitted) when the children are in his care.

   n)That the father shall forthwith return the children’s birth certificates, citizenship certificates and passports to the mother.

Uncontested relevant facts

1. The parties were married on (omitted) 2006.

2. There are two children of the relationship:

   a)X born on (omitted) 2006; and

   b)Y born on (omitted) 2012.

3. At birth X was registered as X, and her name was changed to X in 2015.

4. The parties separated on 15 January 2016.

5. At separation the mother left the former matrimonial home.

6. Since the date of separation the children have remained living in the former matrimonial home with the father.

7. Between January and April 2016 the children were spending every weekend with the mother, including overnight.

8. Commencing in April 2016 the children have spent limited time with the mother, with all such time being supervised by the father.

Section 60CC Factors

Views of the child

1. Except through what is asserted in each of the party’s Affidavit, the views of the children have not been independently reported.

2. The mother has observed the children to be upset when they have to go home after spending time with her and that while they are spending time with her she observes them to be happy and affectionate.

3. After separation, and while the children were spending overnight time with the mother, the father says that the younger child has indicated to him that she did not like her aunt’s house (where the mother lives), and that the older child had reported to him that the mother, and other members of the household where the mother was living, had hit her while she had been spending time with the mother. The father does otherwise not report what the children’s views might be about either spending time with the mother or living with the mother.

Nature of the children’s relationships with their parents and significant others

1. There is very little evidence of the children’s relationships with the parents and significant others.

2. The father, due to the mother’s working hours, was the children’s primary care giver for the majority of their lives. This does not mean however that the father is the children’s primary attachment figure. There is no evidence in this regard.

3. The mother acknowledges that her relationship with the older child has been problematic, but puts that down to the difficulties in her relationship with the father and also asserts that the father has been alienating the children. The mother says that since separation her relationship with her older daughter has improved. The mother says, and it is paraphrased, that because she has been less stressed as a result of the separation and no longer living with the father, she has been better able to parent the children. Such an admission appears to be against interests, not only because it can be inferred from that that the mother’s parenting capacity was limited during the parties’ relationship but also because the children’s relationship with the mother does not appear to have been adversely affected by the limited time that they have been spending with the mother.

4. The father says in his Affidavit “I do not believe that X would ever agree to living in (omitted) with Ms Maynard.” He does not give any basis that opinion.

5. Annexed to the mother’s two Affidavits are handwritten notes said to be from the children as well as a text message said to be from X, although it appears to be signed “A”. The handwritten notes on their face indicate that the children love and miss their mother as well as their ‘aunts’. The text message on its face indicates that X is missing her aunts a great deal.

Parent’s involvement with decision making, spending time and communicating with the child and Maintenance of the child

1. After separation the father has been the main decision maker in respect of what time the children were to spend with the mother.

2. The mother has availed herself of the limited opportunity which has been offered to her by the father, of spending time and communicating with the children.

3. The mother pays $630 per month in child support. The mother has also recently purchased new glasses for X, and this year she paid $480 in school fees.

Likely effect of change and practical difficulty of spending time

1. The father lives in (omitted) in a two-bedroom unit. The children have been living with the father in the former matrimonial home since separation in January 2016.

2. The mother has been living with her sister and her sister’s family in their home in (omitted). The mother’s proposal for the children to live with her would see a significant change in the children’s living circumstances, including a change of school for X. The mother’s proposal would see the children living with their extended maternal family.

3. There is no practical difficulty with the children spending time with either of their parents.

Capacity to provide for child’s needs and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. On the face of it both parents are able to meet the children’s basic physical needs.

2. The mother asserts in her Affidavit that the father does not cook for the children, clean the home or wash the children’s clothing. She says that during the time she was spending with the children in the father’s home post separation, she would often do the cooking and cleaning, to ensure that the children had home-cooked meals and clean clothing.

3. The father says that he keeps a clean home and that he cares for the children by doing the washing and cooking.

4. Each of the parents implies that the other is not capable of looking after the children’s emotional needs. The father does this through his evidence of violence which he alleges the mother perpetrated, and the mother does this through her allegation that the father is alienating the children.

5. In his Affidavit the father says of the mother:

   Ms Maynard has a fictional dream home in mind, she cannot pay rent and support herself and 2 children on her small salary. When she gave birth to X, I paid $1,200.00 Hospital fees and she did not pay the rest of the money. Hospital fees were overdue, Hospital was unable to discharge a new born baby without the payment. Ms Maynard has no capacity to pay school fees of $4,700 per year. Ms Maynard has no clear plans for her own future let alone the children’s future. She does not know what she is doing. I have known Ms Maynard for a long time, she is always crying and complaining. Ms Maynard has no stability in her life. She has no plans for the children’s education and advancement in life.

6. The father’s view of the mother is not flattering. Counsel for the father conceded that the father had not done anything positive to encourage the relationship between the children and the mother since separation. The Court is not satisfied that the orders which the father proposes for the children’s time with the mother would promote or facilitate any kind of meaningful relationship between the children and the mother.

7. The orders proposed by the mother would ensure that the children would be able to maintain a relationship with their father, by spending significant and substantial time. The Court is satisfied on all of the evidence that the mother will not impede a relationship between the children and the father, and indeed, that she will facilitate and encourage such a relationship.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents; if the child is an Aboriginal

1. The father is a (nationality omitted) origin.

2. The mother is a (nationality omitted) origin.

3. The children are (omitted) of mixed racial background. The mother does not propose to change the children’s religion and proposes orders for the children to celebrate (omitted) holidays.

4. The father is a (occupation omitted) and currently works one day per week. He is otherwise a full-time parent.

5. The mother is an (occupation omitted) and works full-time. She works on Mondays, alternate Tuesdays, Wednesdays, Thursdays, alternate Fridays and on Sundays. The mother’s working hours are 6:45 PM to 3:15 PM.

Family Violence

1. Both parties make significant and serious allegations of family violence.

2. Family violence is defined in s4AB of the Act. The definition states:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

3. There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.

4. Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.

5. The father describes the mother as “habitually” hitting X which “beatings” he witnessed himself. He describes the beatings as frequent. The father says:

   Ms Maynard would have bouts of rage; scream at both girls, call them names, call me names and then would pick up a hard object and hit the older child X with it or grab X’s hair and pull.

   The father alleges that the mother hit X with a metal flat knife, which the mother denies and says that it was a spatula. The father alleges and the mother agrees that she would hit X with a wooden spoon. It is the severity of the “beatings” which the mother denies.

6. After separation and during the 8 weeks when the children were spending weekends with the mother the father says that X had reported to him that the mother had threatened to cut her hair, that the mother had hit her, had pulled her hair and that she didn’t get to sleep until 1am.

7. The mother says that both parents physically disciplined the children during the parties’ relationship, at times with a wooden spoon. The mother seeks an order that both parties be restrained from physically disciplining the children.

8. Physical discipline does not of its own necessarily constitute family violence. The facts as alleged by the father would, if accepted, support a finding that the discipline was excessive. The Court is however not able to make findings with respect to the facts which are in dispute. The admissions by the mother however, namely that she would discipline the children by smacking them with an open hand and/or with a wooden spoon do not, without more, amount to an unacceptable risk of harm as assessed by the Court.

9. The mother makes other very serious allegations of coercive and controlling behaviour by the father. She asserts financial control, namely that he would take all of the wages which she earnt and only provide her with limited funds at his discretion. She says that he restricted her contact with her family. The mother says that the father had his own bedroom which he would keep under lock and key, and that she and the children shared a bedroom where they slept together. The mother asserts that the father would not let either her or the children to use the bathroom without leaving the door open.

10. Importantly the mother alleges that the father had installed video cameras in the parties home which were located in each of the rooms including the bedrooms. The father denies that the video cameras were installed in the bedrooms or the bathroom. He admits to having installed the cameras in the home in January 2013 the main reason being his concern for the safety of the children because of the mother’s violence towards the children.

11. Annexed to the father’s Affidavit are what appear to be two contact records for Family and Community Services (“FaCS”). Both of the reports to FaCS were made by the father.

12. The first contact record dated 23 March 2016, notes allegations that the mother has been beating X with implements (with both wooden and metal spoons), the father believed that X did not sustain serious injuries, but rather that she had sustained “little red marks” that last three to four days. The father had never reported these concerns previously and as far as he was aware the mother is not abusive towards Y, as the father believes that she is too young. The record goes on to say that the father

    “…reported that there are 5 separate occasions that have been filmed on security cameras of Ms Maynard beating X… [Father] reports that Ms Maynard and other family members are aware that the cameras are operating within the home and is for the “children’s protection”. The cameras operate in Ms Maynard’s bedroom, because X and Y sleep with her, as well is in the lounge room and kitchen. It is reported that [father]… has not gone to the police with this footage, because there is fear of breaking up the family… [Father] is also sponsoring a family member to come to Australia, and is fearful that reporting to the police will jeopardise the sponsorship.

    [Father]… reported that there was domestic violence within the home for more than a year, however clarified the violence was between Ms Maynard and X… [Father] reports that Ms Maynard is verbally aggressive towards [him]… [Father] reports that Ms Maynard has no MH history and no drug or alcohol abuse by any of the members living in the household.

    The children are currently with Mr Frye, however will be returning to their mothers on Friday night.

13. This first contact record is inconsistent with the father’s evidence about where the video cameras were installed, and is supportive of the mother’s evidence that the father had installed cameras in the mother’s bedroom.

14. It was conceded by the father’s Counsel that the installation of video cameras in the former matrimonial home by the father constituted coercive and controlling behaviour.

15. The second contact record dated 25 March 2016, records that the police came on Wednesday 23 March 2016 as the mother had wanted the children, but was told by police to seek custody orders. The father said that he saw a red mark on X’s shoulder on Monday night and had asked X about it that she would not say anything. The father said that the red marks look like finger marks. The father then alleged that X had told him the previous night that she was bitten by her mother at (omitted) two weeks ago, namely on 19 March 2016. The father said that X did not tell anyone about the incident that she said that she was scared to tell, as the mother will do it again. X said she refused to shower and that her mother had bitten her on the back of her shoulder and slapped her on the cheek. The father did not see any marks on X’s cheek. The father further said that Y who was 3 ½ is being told by her aunt not to talk to her father and to stay with the aunt. Apparently this makes Y cry.

16. Also annexed to the father’s Affidavit are what appear to be certain police records.

17. The first of those records is for 22 March 2016 and is a complaint by the father as follows:

    On the above date at the above time the VIC attended (omitted) police station to report that he believed his wife and her new partner were going to kill him. Police questioned the VIC as to why he had these fears.

    He told the police his wife had left him on 15 January 2016 to be with another man. He said his wife had been seeing this other man for approximately 4 years while they were married. The VIC stated while they were married the PN was rude to him and they would argue all the time. It was stated the VIC and PN have 2 children together. The PN comes to pick up the children over the weekend for visits. There is not any custody orders in place but they have a verbal agreement. There has been no issues with custody only that the victim wishes for the PN not to come to his house (he was advised to get family law court orders in relation to this matter)

    The VIC told police he believes because of his wife’s attitude and a new partner having been a (occupation omitted) for 40 years they will kill him. He believes the new partner could put a GPS in his house although it has never spoken to the PNS new partner. When police attempted to gain more information as to why he fears the PN and her partner will kill him he continued to repeat the above information.

    Given the information the VIC has supplied to the police and the reasoning of his fears, police have no concerns for the victim’s safety the VIC stated there has been no arguments between the 2 parties since they separated but does not want her to come to the house.

    Police believe this report has been made for a possible future Family Law Court matter in addition to the VIC’s reaction to the PN having a new partner.

    No domestic incident has occurred and possibly mental health-related.

18. The second police record relates to 23 March 2016. Relevantly it states that on 23 March 2016 the victim (mother) attended the PN’s (father’s) address to collect her children as per the signed contract as it was her day to look after them. The father has allowed the mother into his unit although would not allow her to leave with the children. The mother then contacted the police, who arrived a short time later and observed the parents verbally yelling and abusing each other in front of the children. The mother left without the children after receiving some advice from the police about the binding nature of the written agreement between the parents.

19. The third police record refers to an incident on 29 March 2016. The record has been redacted, but what remains of it indicates that the mother was in the father’s home in the kitchen cleaning. It appears that the police were called because the mother had reported that she had fears of the father and when she was asked by the police why she had come to the father’s house she said that she wanted to see the children. Whilst the police were at the home the parents were observed to be bickering in front of the children over what was happening at the other’s house during the time that they had care of the children. The father was questioned by the police in relation to an alleged assault and because of the parties conflicting versions the police did not take any action.

20. There is a further record in relation to an incident on 15 May 2013 which seems to have involved the parents and the mother’s sister during a time when the parents and the children were living together with the mother’s sister.

21. The above police records, which form part of the father’s evidence, do not record any allegation of violence against the children. 

22. After the parties’ separation, the father has limited and controlled the children’s relationship with the mother. He says he has done so in order to protect the children from harm.

23. The difficulty with this argument is that the father has displayed coercive and controlling behaviours of the mother and the children while the parties were together, and continues to do so. The video cameras installed throughout the home were said to be for the children’s protection. On the father’s evidence they have not achieved that end – namely they haven’t protected the children from the continuing ‘bashings’ which the father alleges. The father did not take any steps to end the relationship to protect the children from the harm alleged. The father did not seek any counselling or other appropriate professional assistance to help the children, and in particular X, to deal with the ‘bashings’ and the abuse which she is said to have suffered at the hand of the mother, or indeed to report such matters, to the Police, particularly noting that other matters were reported and complained of by the father.  

24. What the father has done is to control the mother and the children. His reports to FaCS appear to have been opportunistic. His reports to the Police do not reflect the concerns he raises in his evidence. What the report of 21 March 2016 does is ring a number of alarm bells as to the veracity of his claims.

25. The Court’s overall assessment of the allegations of violence made by the father is that they do not cross over into the area of an unacceptable risk of harm such as to warrant an order for the mother’s time to be supervised. Furthermore, the mother lives with other members of her extended family. This is a protective factor for the children, notwithstanding the father’s assertion as noted in paragraph 30 of the Reasons. Importantly no allegations have been made regarding Y, and the mother states that her relationship with X has improved.

1. In respect of the allegations made by the mother and in light of the concessions in the father’s case, the Court is satisfied that the father has engaged in coercive and controlling behaviour of the mother and the children, such as to fall within the meaning of family violence in s4AB.

Institution of further proceedings and other relevant matters

1. These are only interim orders, and it is likely that if the matter proceeds to final hearing, there will be a time period of at least some twelve months before the matter is decided on a final basis.

2. The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents and the need to protect them from harm.

Primary Considerations

1. There can be no doubt that the children would benefit from having a meaningful relationship with both of their parents.

2. The protection of the children from harm is one of the important matters in this case because of the assertions and allegations made by each of the parents.

3. Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made by each of the mother and the father. In doing so the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where children are to live, and what time, if any, they are to spend with the other parent.[10]

   [10] M & M (1988) 166 CLR 69 at 77

4. The Court has already considered the allegations of domestic violence made by each of the parties and made some limited findings about those.

5. In making the orders which are made, the Court has put in appropriate safeguards to ensure that the children are not exposed to an unacceptable risk of family violence.

Parental Responsibility

1. Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[11] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.

   [11] See note 1 s61C

2. Each of the parents seeks an order for sole parental responsibility, although the mother submits to the Court, in the alternative, that the presumption of equal shared parental responsibility not be displaced.

3. As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[12]

   [12] s61DA(3)

4. The matter has come on for hearing very quickly. In all likelihood the parties are still trying to come to terms with the separation and their new separate lives. The children will also need some time to adjust. The parties have, as noted in the Police records, argued in front of the children about what happens in their respective households. The parents do not have a good working relationship at present. There appears to be very little trust between them.

5. The mother proposes for X’s school to be changed such that she goes to a school closer to where the mother lives, if the Court makes an order for the children to live with the mother. This seems like a sensible approach, although perhaps best implemented from the start of the 2017 school year.

6. At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. The Court hopes that with appropriate intervention this will improve hence the Order pursuant to s.13C. The Court notes for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[13]  

   [13] s61DB

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best interests for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 3 November 2016