McBride and Perrett

[2016] FCCA 3198

FEDERAL CIRCUIT COURT OF AUSTRALIA

McBRIDE & PERRETT [2016] FCCA 3198

Catchwords:
FAMILY LAW – Interim arrangements for care of five children – allegations of family violence – equal time or substantial and significant time – primary considerations – best interests.

Legislation:

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

Deiter & Deiter [2011] FamCAFC 82

Applicant: MS MCBRIDE

Respondent: MR PERRETT

File Number: ADC 2943 of 2016

Judgment of: Judge Brown

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Adelaide

Delivered on: 23 November 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Lewis

Solicitors for the Applicant: Spencer Gulf Law

Counsel for the Respondent: Mr Hemsley

Solicitors for the Respondent: Fowler Ireland Pty Ltd

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be urgently appointed to represent the interests of the children V born (omitted) 2007, W born (omitted) 2009, X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 and 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.

2. 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.

3. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 March 2017.

4. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

5. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

6. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

7. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The children V born (omitted) 2007, W born (omitted) 2009, X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 live with the mother.

2. The father spend time with the said children as follows:

   (a)During school terms:

   (i)From 3:00pm Saturday until 3:00pm Sunday each week;

   (ii)From conclusion of school until 7:00pm each Wednesday;

   (b)During school holidays:

   (i)From 3:00pm Saturday until 3:00pm Sunday each week;

   (ii)From 3:00pm Wednesday until 3:00pm Thursday each week;

   (c)During Christmas 2016:

   (i)The father’s Saturday night (24 December 2016) be suspended and in lieu thereof from 3:00pm on Sunday, 25 December 2016 until 5:00pm on Monday, 26 December 2016;

   (d)On the child V’s 9^th birthday being (omitted) 2016 from the conclusion of school until 5:00pm; and

   (e)On the child W’s 8^th birthday being (omitted) 2017 from the conclusion of school until 5:00pm.

3. Handovers are to occur with the father to wait at his front door and the mother to deliver and collect the children from the front door of the father’s home.

4. The father is restrained and an injunction issue restraining him from consuming any alcohol or illicit substance whilst the children are in his care or 12 hours beforehand.

5. Both parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating, rebuking or assaulting the other in the presence or hearing of the children or from permitting any other person to do so for from discussing the proceedings with the children or from permitting any other person to do so.

6. The mother’s evidence given in the witness box today be transcribed and provided to the parties.

7. Further consideration of the matter is adjourned to 12 April 2017 at 9:30am for directions following the release of the family report.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2943 of 2016

MS MCBRIDE

Applicant

And

MR PERRETT

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the controversy arising in the case, it is appropriate that they be transcribed.  The reasons have been corrected from the transcript to remove grammatical errors and efforts have been made to make the oral reasons amenable to being read.

2. This afternoon, I am dealing with a difficult matter which concerns competing allegations of family violence.  The applicant in the proceedings is Ms McBride “the mother”.  The respondent is Mr Perrett “the father”. 

3. The parties are the parents of five children – V, who was born on (omitted) 2007; W, who was born on (omitted) 2009; X, who was born on (omitted) 2010; Y, who was born on (omitted) 2012; and Z, who was born on (omitted) 2014. 

4. The parties finally separated, in difficult circumstances, around the middle of April of this year, when there was some form of protracted altercation between them at their former family home in (omitted). It is common ground that they have known each other for a significant period of time and have lived together, I think, since either 2008 or 2009. 

5. Both parties have children from earlier relationships.  In Ms McBride’s case, those children are A, who is now aged 18; B, who is aged 15; and C, who is aged 14.  A, B and C currently live with Ms McBride. 

6. In the father’s case, the children are D and E.  They are both now grown up and I have been told by Ms McBride this morning that both D and E have children of their own, so Mr Perrett is not only a father, he is also a grandfather. 

7. By way of background, Ms McBride is about 36 years of age and Mr Perrett is 50.  Both parties describe themselves as being engaged in home duties.  As such, both are entitled to receive social security payments.

8. At this stage, it is Ms McBride’s position that the five children concerned should live predominantly with her and spend regular defined periods of time with their father on each weekend during school terms and for an evening meal on each Wednesday from after school until about 7 pm. 

9. She has proposals to extend that Wednesday period during school holidays to 3 pm the following Thursday, but otherwise she would want the weekend periods to continue during the school holidays, particularly the forthcoming end of year school holiday. 

10. Ms McBride has also made some proposals for Mr Perrett to spend time with the children on Christmas Day and on V’s birthday, which will be coming up shortly, and W’s birthday, which is in early (omitted).

11. Mr Perrett has responded to this application fairly recently.  I accept, however, that he had prepared an application earlier, which had to be reconfigured because Ms McBride had filed her application first and therefore, it was necessary for him to respond to it rather than initiate his own proceedings.  This state of affairs is indicative of the urgency and controversy of affairs between the parties.

12. On a final basis, it is Mr Perrett’s position that the children ought to live with each of their parents in what is commonly called a shared care arrangement moving between their parents’ respective homes on a week about basis. 

13. However, on an interim basis, through his counsel, Mr Hemsley, Mr Perrett has indicated that he is open to other arrangements, in the short to medium term, which would encompass blocks of time on alternate weekends from Friday to Sunday, in one week of each school fortnight and in the other week of the fortnight from Tuesday to Thursday. 

14. During the school holidays, it is Mr Hemsley’s submission, on behalf of the father, that there should be either an equal time arrangement or, at the very least, a substantial and significant time arrangement.  Accordingly, Mr Perrett seeks to spend either equal time or significant and substantial time with the children.

15. These proceedings arise at the interim stage.  At the interim stage, it is not possible for the court to resolve definitively factual disputes arising between the parties concerned. The mother commenced the proceedings on 5 August 2016 with what is a comparatively short affidavit, and I will come to that in a moment.  More recently, Mr Perrett has responded, again with a fairly short document. 

16. From my perspective, it is difficult to have a clear understanding of the chronology of what has occurred between the parties.  Suffice it to say at this stage, in general terms the parties’ separation is very recent.  It was also very difficult, involving police charges and the issue of family violence orders. 

17. As result, I have reason to believe that significant emotions are still running high, particularly so far as the father is concerned.  From my perspective and in my view, the situation between the parents is a difficult and tense one.

18. Ms McBride, as I say, commenced these proceedings on 5 August 2016.  At that stage her application was focused on arrangements to do with X.  She sought what lawyers call a delivery up order.  That is she wanted the court to make an order requiring Mr Perrett to deliver X to her care.

19. At that stage, on an interim basis, she proposed supervised time between the father and the children including X, which was to be supervised by an adult family member of the father’s choosing.  Ms McBride proposed that the children be exchanged between the parties at the (omitted) police station.

20. As I say, Ms McBride’s affidavit was a fairly brief document.  It consists of some 21 paragraphs, which occupy about three and a bit pages.  From her perspective, the situation was urgent and she and her solicitor did not have time to prepare a more detailed affidavit.

21. Ms McBride deposed that the relationship between her and the father had always been characterised by verbal abuse and there was a history of domestic violence of which she had been the subject and to which the children had been exposed. 

22. She deposed that in 2011 the father had been charged after he had punched her in the stomach while she was pregnant with Y.  At the same time, she also alleged that she had been hit on the back of the head.  It was Ms McBride’s position that for the last five years of the parties’ relationship she had wanted to leave the relationship, but remained in the home – and this is in inverted commas in her affidavit – “to keep the peace.” 

23. It is her case that Mr Perrett has a detailed criminal and drug history.  She alleges that Mr Perrett is addicted to cannabis and as a consequence of that his memory is affected.  She also alleges that Mr Perrett has issues to deal with alcohol consumption.   The tone of her affidavit is critical of Mr Perrett, particularly in regards to his violent behaviour and substance abuse issues.

24. It is her case that during the relationship and since the time each of the children was born that she has been the parent who has attended to more of their needs, including feeding, bathing, and caring for them, as well as cooking their meals and generally taking care of them. 

25. In particular, she says she entertained the children and took them to and from school, kindergarten and playgroup.  It is her position, I think, that Mr Perrett is a person who does not engage with others very much and is quite inward-looking.  In her affidavit, Ms McBride deposes as follows:

    “I eventually came to the conclusion that I had had enough.  I went to the police and reported the father’s violence.  A copy of my statement to police is annexed and the subsequent intervention order is further annexed.”

26. Accordingly, to understand what is the mother’s position regarding the circumstances surrounding the parties’ separation, particularly in regards to her allegations of family violence, it is necessary to read her police statement.  This statement was given on 22 May 2016, to a police officer in (omitted) where the parties have lived for many years. 

27. It is Mr Perrett’s submission that the date of the statement is significant, it being some reasonable period of time after the parties finally separated.  Essentially, as I understand it, it is Mr Perrett’s case that Ms McBride has either grossly exaggerated or fabricated her claims to advance her case in the court.

28. Ms McBride’s statement to the police is double spaced in reasonably large type.  It is eight pages and some – I am not sure how many paragraphs as the paragraphs are not numbered.  It is a reasonably detailed document which the police have taken from her. 

29. In her statement, Ms McBride asserts that there has been some violence in her relationship previously with Mr Perrett which has necessitated the involvement of police.  She further alleges that Mr Perrett degraded and belittled her and was controlling.  In addition, and of some significance, she alleges that from time to time Mr Perrett would take her phone away from her as a means of exercising control. 

30. On Friday 15 April, which is the date on which from Ms McBride’s perspective the relationship came to an end, she says she went out with friends.  She came home in the early hours of the next morning at about half past midnight.  Thereafter, she says that Mr Perrett grabbed her upper arm and pulled her into the bathroom.  She had her handbag which had her phone and purse in it. 

31. She alleges that when she put her bag on the floor, Mr Perrett took her purse and phone and put it in the pockets of the shorts which he was wearing.  She alleges that Mr Perrett was concerned that she had been out with another male person and that he was agitated about that.  I will not indicate precisely what she alleges he said at this stage.  Ms McBride says she went into her bedroom and lay down.  It seems to have been, from her perspective, a very tense situation. 

32. The next morning, she alleges that she was told to stay in her bedroom.  She says she asked for her purse and Mr Perrett said he did not know where he had put it.  She says that she was in the home for most of the day.  She alleges that she was told by Mr Perrett that she could not leave the home and that “a mum and dad were supposed to be together in the house for the sake of the kids.” 

33. Later that afternoon at around 6 o’clock she says she was lying on her bed when Mr Perrett placed his hand over her mouth, which caused her to have difficulty breathing.  She says that his hands were over her face for 30 to 40 seconds. 

34. The next day, Ms McBride says she needed to go to the shops.  As result, she asked for the keys back for her car as she could not find them in her bag.  Mr Perrett is reported by her as saying, “I don’t know where they are either.”  To the police, Ms McBride said she concluded that it was at this stage she came to the conclusion that she was not going to be able to easily leave the home because she did not have access to either money or her car keys.

35. It is her position that over the next couple of days Mr Perrett said things that gave her the view that she might get hurt if she left with one of or all of the children.  She alleges that he said things like, “If you go and I don’t have the kids, one of the parents will get hurt.  I may as well just kill you and keep the kids.”  He also allegedly said, “If you go with the kids, it will make me do stupid stuff and burn your car.  I understand now why dads kill their kids.”

36. Over this period Ms McBride asserts that she was, in effect, being held there against her will as she had no way of leaving.  It is also her case that her car had been placed in the shed, which was locked, and to which she did not have the key. 

37. On 22 April, Mr Perrett apparently had an appointment at Centrelink.  The previous evening, Ms McBride said she had found a spare key to her car in her jewellery box.  However, although Mr Perrett had left the home, she was not able to use that key because, as I say, the shed in which the car had been placed was locked.  Nonetheless she began to pack her things and things for the children. 

38. Mr Perrett returned at about 11, which was earlier than Ms McBride had expected.  Ms McBride had also been to Centrelink earlier inquiring about how the single parent payment could be changed for the children.  There was something of an altercation between the parties.  Mr Perrett is alleged to have said to Ms McBride that she could leave but she could not take the children with her.  Ms McBride alleges that an item of property was broken in a struggle. 

39. In any event, by this time, Mr Perrett apparently had unlocked the shed which enabled Ms McBride to leave.  At this stage she alleges that Mr Perrett scratched her car.  She drove around the corner, and B and C joined her.  On any view, the situation over a period of three days or so was extremely tense and difficult.

40. So essentially, it is Ms McBride’s case that she was compelled to leave the home without the children who are the subject of these proceedings.  In her affidavit she deposes that “on 22 May, I was able to secure the children in my care, as a consequence of the father being arrested.” 

41. As I say, it is on 22 May that she made her statement to the police, which I have quoted at some length.   It is Mr Perrett’s position that the court needs to approach the contents of Ms McBride’s statement to the police with extreme caution.  The implication being that she has fabricated or exaggerated the incidents in question in order to be able to gain control of the children, through a no contact family violence order.

42. Mr Perrett, in his responding affidavit, has denied that he has ever been physically violent towards the mother.  He deposes that it was actually the mother who was physically abusive to him and his children, D and E.  He also alleges that she has been violent to her own children B, A and C.  It is his evidence that his daughter E has told him that she has seen V and Y with black eyes.

1. Under the heading “The Mother’s Domestic Violence” in his affidavit, the father alleges that, when the mother was pregnant with Y, which must have been in 2012 or thereabouts, the mother assaulted D and became angry with B.  In 2010, around the time X was born, he alleges that there was an assault on A, involving the mother “banging her head on a cement wall.”

2. Mr Perrett describes this behaviour as being “normal” for Ms McBride and that she was “volatile and would become angry for no reason” on occasions locking him outside the house.

3. The father has also asserted that the child B does not have a good relationship with her mother and is at risk in her care.  He alleges B suffers severe depression and cuts herself.   Mr Perrett deposes the mother does not respond appropriately to these concerns and has not got the help B needs.  In this context it is asserted that the mother said to B, words of the effect of “Do it properly.  Do you want me to sharpen it for you?” presumably in relation to some instrument.

4. Mr Perrett’s affidavit, which has been handed to me today, is also a fairly short document.  It is one of about 39 paragraphs.  Essentially, Mr Perrett speaks of his previous care of E and D and indicates that he has had a significant role in caring for the children who are the subject of the current application. 

5. He denies that his memory is affected by cannabis.  It is his position that he smokes the drug occasionally, but has cut down dramatically.  He asserts that he rarely drinks alcohol and, as I say, he denies being a violent person.

6. On 26 September 2016 (the first directions date), the mother’s solicitor had filed an affidavit of service which indicated that the application had been served on Mr Perrett on 19 August, which was about a month prior to the application being listed for directions.  Mr Perrett did not appear at the first directions hearing nor had he filed any affidavit material.

7. At that stage, as I say, Ms McBride’s emphasis was on arrangements to do with X.  It was her position that Mr Perrett would not allow her to engage with X.  She had the care of four of the children but X had not come into her care. 

8. I was concerned, given the allegations – which I considered to be significant – of family violence that the children were separated from one another and that Mr Perrett, ostensibly at least, did not seem inclined to engage in the court process.

9. On that basis, I made an order that V, W, Y and Z live with their mother and that X spend time with the mother until an adjourned date which was to be comparatively soon – 7 October.  A copy of the order was to be personally served on the respondent. 

10. Subsequently, Ms Graham, Ms McBride’s solicitor, filed an affidavit in which she indicated that she had been informed by her process server that the process server was of the view that Mr Perrett was attempting to avoid service.  In the order of 26 September 2016 it was envisaged that if Mr Perrett did not respond to the order, there would be a recovery order made in respect of X on the adjourned date. 

11. To Mr Perrett’s credit, it seems to be the case that X came into her mother’s care as a result of Mr Perrett’s agency.  There was no material before the court, on 7 October, filed by Mr Perrett.  Mr Hemsley appeared.  In these circumstances, he was not opposed to there being an adjournment. 

12. Against this background, I ordered that there be a family dispute resolution conference on 7 November 2016.  I have got a report from Mr P, the family consultant who conducted the conference in question.  Again, this is a comparatively short document. 

13. Mr P consulted with the parties, over the telephone, given both were in (omitted) at the time.  I point out, at this stage, that Mr P’s report is not only short, it is also not tested in any way and clearly it was not ideal that Mr P had to consult with the parties over the telephone. 

14. In addition, I acknowledge that Mr Perrett is not likely to be particularly comfortable dealing with a person like Mr P over the telephone.  However, these are interim proceedings, and as they are also proceedings which relate to children, the rules of evidence are not to be strictly applied. 

15. Mr P indicated his opinion that Mr Perrett presented poorly to him.  He demonstrated, in Mr P’s view, very little evidence of having given the children’s living arrangements serious consideration, and was noted to be aggressive and antagonistic in his demeanour.  When asked for his proposal in regards to the care arrangements of the children, he is reported to have said, “Fifty-fifty, I suppose.” 

16. Ms McBride was described by Mr P as being more conciliatory and cooperative, an attitude which in Mr P’s opinion, was not an attitude reciprocated towards her by Mr Perrett.  Under the heading “Issues for the Children” Mr P opined that the allegations regarding Mr Perrett’s violence were of significant concern to him in relation to issues surrounding the children’s wellbeing and safety. 

17. However, Mr P also indicated that Mr Perrett had also alleged to him that the children were at significant risk of suffering abuse and violence, when in Ms McBride’s care.  As a consequence, he indicated that when Mr Perrett submitted his documents to the court, these issues might very well come into sharper focus.

18. At this stage, it is my apprehension that Mr Perrett’s allegations are somewhat generic in nature.  He refers to specific incidents that must have occurred in 2010 and 2012.  He says that he was locked out of the house and made to sleep in the shed, and his allegations, as I say, are lacking in some detail.

19. The proceedings were adjourned until today following that report, and the matter came on at around 11, I think.  At that stage, Mr Lewis announced his appearance for the mother but indicated that she was not present in court. 

20. At this stage, it became apparent that Ms McBride had, in fact, come from (omitted) for the case.  I am pleased that she has done so, as clearly these proceedings are of great importance to her.  But regrettably, Mr Lewis was not aware that she was here.  So the matter was stood down so the two could confer with one another. 

21. This case, in my view, epitomises all sorts of difficulties for families who live in fairly remote areas of the state which are not serviced by the court.  Necessarily parties have to travel a long distance to have their matters attended to or attend via electronic means. 

22. Mr Perrett has not been able to come from (omitted) for the case.  I am not critical of him for that, but clearly, this is a case that is bedevilled by distance and lack of resources for – and I mean no one any disrespect – a family that has got a lot of issues in it at the moment, and which faces a lot of challenges.

23. As I say, it is Ms McBride’s position that she was the subject of quite significant family violence during the parties’ relationship and that Mr Perrett has not been focussed on the children’s best interests.  Mr Perrett’s position is that these claims of violence are fabricated and necessarily it is the mother who is not focussed on what is best for the five children concerned. 

24. Because Ms McBride was here and because it seemed to me there were quite a few gaps in the evidentiary material that I had, I elected to hear some evidence from Ms McBride herself.  I should point out that this course was against Mr Hemsley’s strong objection.  It was his view that such an approach was unfair to his client, and I accept that he (Mr Perrett) is likely to perceive it as such. 

25. However, these proceedings are not, of themselves, a strict adjudication of the parties’ rights.  Rather, they are an inquiry into what is in the best interests of the children themselves, who are not, strictly speaking, parties to the proceeding. 

26. So I was concerned to take some evidence from Ms McBride, particularly in regards to why there was such a gap between the parties’ separation; her statement to the police; and her subsequent application to the court.  My concerns were heightened by what I regarded as significant claims of family violence in the mother’s statement to police which came some time after the incidents complained of which contrasted with Mr Perrett’s position that the mother was just manipulating or gaming the situation, if you like, against him. 

27. My impression of Ms McBride was that she was a decent person and not one who was manipulative or disingenuous in any way.  She did not seem to be motivated by vindictive feelings for Mr Perrett.

28. In this context, I asked her some questions about Mr Perrett and the children.  She indicated that Mr Perrett was a person who loved the children and the children loved him.  She also conceded that he was able to take appropriate care of and feed the children, but she did have some concerns about his ability to tend to their emotional needs. 

29. It is her position that the older children are, at this stage, reluctant to spend time with their father.  Nonetheless, she wanted the children to spend some time with their dad.  It is against that background she had proposed the orders which she had done after thinking about it carefully. 

30. Although I might be wrong, she did not strike me as being a malicious person.  She agreed with the statement that I put to her that she had been given something of a run-around by the police in the period immediately after the parties had separated and she had been forced to leave the home without the children concerned.  The police had apparently told her that she needed to consult a lawyer about the children.

31. Again, I mean her no disrespect, but she was not entirely sure, I think, about what was happening with the police proceedings against Mr Perrett.  However, it does seem to be the case that Mr Perrett is being charged and Ms McBride has said that she does want him to be charged, although initially she did not but currently she thinks Mr Perrett needs to do something about issues to do with his anger.  Whether he will or not, I do not know. 

32. I accept that I have not heard anything from Mr Perrett about these highly contentious issues which also seem to be the subject of contested police proceedings.  Mr Perrett may present equally as well as Ms McBride in the witness box.  In addition, Mr P’s impressions of him gained through the imperfect medium of the telephone, may ultimately prove to be inaccurate.

33. The case, of course, presents a dilemma. It presents a dilemma because of the terms of the Family Law Act. In making any order in respect of a child, I have to be satisfied that that order is in the best interest of the child concerned.

34. 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.

35. 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.

36. 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.

37. The expression “family violence” is defined in section 4AB of the Family Law Act. It means:

    “… violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

38. Interestingly, the legislature has given a list of things that may be family violence according to section 4AB, and some of those include the following:

    ·an assault; 

    ·derogatory taunts; 

    ·intentionally damaging or destroying property; 

    ·unreasonably denying a family member financial autonomy; 

    ·unreasonably withholding financial support;  and

    ·unlawfully depriving a family member of his or her liberty. 

39. In this context, I regard it as germane to go through Ms McBride’s statement to the police.  I accept that her statement has not been tested in any way and Mr Perrett is contesting the charges that have arisen as a consequence of it and her resulting complaint.

40. But on Ms McBride’s evidence, there have been abusive statements; there have been threats, including a threat to kill or do her quite serious harm; there was an assault, if what she says is true, when Mr Perrett placed his hand over her face.  There has been some damage done to property when her car was scratched; and significantly, it is Ms McBride’s case that she was not allowed to have her phone and her purse which to a certain extent resulted in her being deprived of financial control and her liberty. 

41. The essence of the definition of family violence is behaviour that controls another person.  These issues are, I think, significant in the context of this case.  If what Ms McBride asserts did occur, she was the subject of coercive and controlling family violence.

42. A child is exposed to family violence if the child sees or hears that behaviour or experiences its effects.  In this case, it is clear, I think, that the children were in the house during this period of time and have almost certainly been exposed to behaviour which amounts to family violence. 

43. I concede that Mr Perrett may, at a later stage, be able to persuade the court that what occurred was reactive behaviour rather than coercive and controlling behaviour – that is it is behaviour which occurs as a result of a stressful or difficult situation.  Clearly, from time to time, people do behave badly when they are unhappy or under pressure.  What happened in mid-2016 was obviously very difficult for both parties because their relationship had come to an end and Ms McBride was wanting to leave.  Obviously that situation had very great implications for everyone concerned and had the potential to elicit a strong emotional reaction. 

44. As I say, I acknowledge that I cannot make findings of fact about precisely what happened.  But it is also clear, I think, given the structure of the Family Law Act  I am not in a position to ignore the mother’s evidence, which, if true, in my view raises very serious concerns and serious family violence. It is also the case that those concerns are echoed, to a certain, extent by what Mr P has reported. 

45. The Full Court, in a case called Dieter & Dieter[1] has directed that, in assessing risk, including the risk of family violence which arises in any particular parenting scenario, the court must look to the evidence available, and it is not in a position to ignore that evidence just because it is tested or unproven. 

    [1] Deiter & Deiter [2011] FamCAFC 82

46. In this case, I am concerned about the allegations of risk that have been raised.   But clearly, so far as the other primary consideration is concerned, the children clearly have a significant level of relationship with their father.   In this context, I accept Ms McBride’s evidence that she wants the children to spend time with their father. 

47. However, because of what I regard as the volatility and perhaps potency of the situation, I believe that I should approach the matter and the interim orders to be made with some caution. 

48. There is a presumption in the Family Law Act 1975 that it is in the best interests of children that their parents should hold what is called equal shared parental responsibility for their children.  This presumption, in turn, triggers a number of things I have to consider, including an equal time arrangement or a significant and substantial in time regime. 

49. The presumption is rebutted by three factors: 

    ·firstly, that I am of the view that it is not in the best interests of the child or children concerned; 

    ·secondly, if I have reasonable grounds to believe that family violence has occurred, and

    ·thirdly, at an interim stage, that it is just not reasonably practical for it to be applied. 

50. In this case, I think there are reasonable grounds for me to believe that family violence has occurred, and as a consequence of that, the presumption is rebutted. 

51. Thereafter I am required to look at all the factors arising under section 60CC, both the primary considerations and the longer list of additional considerations, to come to what I think is the best arrangement for the children concerned.

52. The tension in this case is the obvious familiarity of the children with their father, with the need, I think, to protect them from a volatile situation which has arisen because the parties have separated. 

53. I have also got to look into ancillary matters such as the wishes or views of the children and the insight that each of the parties has shown to the responsibilities of being a parent.  In this context, from Ms McBride’s point of view, it is her case that she has been the more responsible parent and the one who has provided more of the care needed for the children concerned.

54. I have also got to consider which of the parties is likely to be able to better support the emotional and educational needs of the children concerned.  There was a period of time when the children did not go to school when they were in the father’s care.  This situation arose after the mother had left the former family home and whilst there was controversy about arrangements for their care.  Clearly it was not a situation conducive to the education needs of the children being supported.

55. More significantly, I have to think about the emotional needs of the children.  If what Ms McBride reports that the father has said about killing the mother and comment as to why dads do what they do, I do have some concerns that Mr Perrett is not, at the present time, in a position to attend to the emotional needs of the children in an appropriate way. 

56. I regard this as quite a significant case.  As I say, I am concerned that the parties and the family are at a significant disadvantage because of where they live and their remoteness from the court, and indeed, and I mean no criticism of anyone, just the pressures on services in a centre like (omitted), including the police. 

57. So I think it is incumbent upon me that I make an order that the children be independently represented, given the serious allegations of violence which have been made and the conflict in the parties’ relationship with one another.  I also consider that it is necessary for there to be an expert assessment of the family and its needs.  Accordingly, I am going to order that an urgent family report be prepared which will take about 14 weeks. 

58. So Mr Perrett can take some solace that the matter is going to be subject to some independent investigation given his criticism of the mother.  In particular, the independent children's lawyer can make inquiries of the police in regards to any criminal history that the parties have and in respect of any previous involvement the family has had with Families SA and things of that nature. 

59. But more significantly, there is going to be an independent assessment of the children’s needs, particularly to whom of their parents they are more closely connected and, so far as the older children are concerned, what their views and wishes are.  Necessarily that will involve the children coming to Adelaide, almost certainly, but it has to be done. 

60. So those factors militate, in my view, in favour of me making the orders which Ms McBride proposes.  There are difficulties with those orders, but in my view they maintain a link between the children and their father. 

61. I am concerned that to perhaps make a more expansive and ambitious order, as Mr Perrett through Mr Hemsley seeks, will have a counter-productive effect.  It may well be the case that issues between the parties – with their separation – will perhaps settle down over time. 

1. I would be naïve, I think, if I did not think issues to do with financial support for the children and who of the parties gets the supporting parent allowance was not something of a factor precipitating the difficult situation following separation.  But, as I say, I had an opportunity to see Ms McBride in the witness box.  She did not seem to me to be an unreasonable or manipulative person.  So that is a significant thing, and it is congruent with Mr P’s reportage of her.

2. 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 five (105) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       15 December 2016