MCCUE & ADDINGTON

[2020] FCCA 555

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCUE & ADDINGTON [2020] FCCA 555

Catchwords:
FAMILY LAW – Parenting – whether the father’s partner should be present during the father’s time with the children – application of Goode & Goode – consideration of children’s continued exposure to family violence – no change to current orders.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 102NA

Cases cited:

Goode & Goode (2006) FLC 93-286

Applicant: MR MCCUE

Respondent: MS ADDINGTON

File Number: MLC 4349 of 2017

Judgment of: Judge Mercuri

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Melbourne

Delivered on: 13 March 2020

REPRESENTATION

Advocate for the applicant: Mr Lampe

Solicitors for the applicant: Lampe Family Lawyers

Counsel for the respondent: Mr Moore

Solicitors for the respondent: Sarah Lia

Counsel for the Independent Children's Lawyer: Ms McNamee

Solicitors for the Independent Children's Lawyer: Kordell Lawyers

ORDERS

1. Both parties, their servants and agents be and are hereby restrained by injunction from exposing the children or any of them to any family violence.

2. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 (Cth) 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)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(D)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(E)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(F)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4349 of 2017

MR MCCUE

Applicant

And

MS ADDINGTON

Respondent

REASONS FOR JUDGMENT

Background

1. This matter was listed for an interim defended hearing before me on 10 March 2020.

2. The proceedings relate to two children:

   a)X born in 2010 (“X”); and

   b)Y born in 2014 (“Y”).

3. There is a lengthy procedural history to this matter which is not entirely relevant to the issue to be determined at this interim stage.  What is apparent, however, from the evidence of the parties, is that these children have had a chaotic start to life, with little if any long term stability with respect to their living arrangements. 

4. By way of background:

   a)the parties met in or about 2014;

   b)after a very short relationship, the child Y was conceived;

   c)the mother already had the child X from a previous relationship;

   d)the parties were together until about September 2016;

   e)over the course of their relationship and post separation, there are allegations of family violence in which each of the parents alleges the other has engaged in family violence towards the other, at times in the presence of the children;

   f)the Department of Health and Human Services (“DHHS”) were involved with the family since 2015, which included the children being placed on an Interim Protection Order with the following issues of concern being identified:

   i)exposure of the children to family violence;

   ii)substance abuse;

   iii)parental capacity;

   iv)mental health issues; and

   v)lack of engagement with services;

   g)the children were returned to the mother’s care in late 2016;

   h)not long after his relationship with the mother came to an end, the father commenced a relationship with Ms A;

   i)the mother alleges that Ms A has engaged in threatening behaviour towards her since the commencement of Ms A’s relationship with the father, Ms A makes similar allegations against the mother;

   j)in May 2018, the mother asked that the children be placed in the care of the father as she had concerns about the safety of her home;

   k)the children lived with the father and Ms A from May 2018 to November 2019;

   l)the father alleges that the mother spent inconsistent time with the children whilst they were in his care;

   m)the father and Ms A also had a child together, B who was born in 2017;

   n)on 4 November 2019, the father and Ms A had an argument and Ms A, on her own evidence asked the father to take the children and leave her and B at home (“the November 2019 incident”),

   o)the father took the children to the mother’s home and later returned to Ms A;

   p)both the father and Ms A state that there was no violence between them on this occasion;

   q)on 20 December 2019, the father, Ms A and B moved from Town F to Suburb D;

   r)there was a further altercation between the father and Ms A on 28 December 2019 and on that occasion, Ms A slapped the father.  This resulted in police involvement and an intervention order being obtained against Ms A (“the December 2019 incident”); and

   s)following the December 2019 incident, Ms A commenced attending upon a psychologist.

5. When the matter came before me on 28 January 2020 it had been listed for a final hearing. That hearing was adjourned to 20 July 2020, an order was made under section 102NA of the Family Law Act 1975 (Cth) (“the Act”) and interim orders were made by consent for the children to spend time with the father as agreed between the parents in writing and ‘in the absence of Ms A.[1]  The matter was adjourned for an interim defended hearing on the sole question of whether Ms A was able to be present when the children spend time with the father.

   [1] Order 8 of the interim orders made on 28 January 2020.

Father’s proposal

1. The father’s proposal is that Ms A ought to be able to be present when the children spend time with him.  He filed an affidavit on 5 March 2020 in which, among other things, he deposes to the circumstances which occurred in late November and December 2019. 

2. It was submitted on behalf of the father that it is not disputed that during the 18 month period when the children lived with the father from May 2018 to November 2019, the father worked long hours and Ms A undertook the day-to-day care of the children, with no issue being taken by the mother about Ms A’s care of the children.

3. Moreover, it was submitted that Ms A did this in the face of significant hostility from the mother towards her which spilled over into the children’s behaviour. 

4. Counsel for the father also relied upon the fact that at no stage previously had the mother, or indeed the Independent Children’s Lawyer (“ICL”) sought orders prohibiting Ms A from being in attendance whilst the children spent time with the father. Reference was made to the outlines of case filed by the mother and the ICL in preparation for the trial of this matter, which was initially listed in November 2018.

5. The father also pointed to the fact that there was no order seeking a restriction on the children spending time with the father in the presence of Ms A in the ICL’s outline of case document filed 23 January 2020. 

6. To the extent that the mother says she does not want the children exposed to any family violence between the father and Ms A, it was submitted on behalf of the father that there is no evidence of family violence between them to which the children have been exposed.  The father stated that the children were not present when the police were called following the December 2019 incident and there is no evidence of violence during the November 2019 incident when the father took the children back into the mother’s care.

7. To the extent that the mother seeks to rely upon Ms A’s criminal record in Queensland, the father submitted that the mother has been aware of this since 2018 and has not previously sought any orders excluding Ms A from the children’s time with their father. 

8. It was further submitted on behalf of the father that:

   a)the mother’s application to exclude Ms A from the father’s time with the children is opportunistic and is derived from the mother’s dislike of Ms A; and

   b)there is no evidence that Ms A is anything other than caring and loving towards the children. 

9. In support of this, the father pointed to the two family reports prepared by Dr C, including Dr C’s comments below:

   An important factor in the current situation appears to be Ms Addington’s hostility towards Ms A even though Ms A is currently actively involved in the care of both X and Y. 

   …

   Ms A presented as a mature 30 year old woman who previously worked as an administrative officer.  She seems to have adapted to having three children in her care without undue difficulty.[2]

   [2] Page 24 of the family report prepared by Dr C and filed 25 October 2018.

10. In addition, the father referred to Dr C’s updated report filed 19 January 2020 in which he said:

    …Ms A appeared to have a good understanding of the children’s progress and their needs. She was aware that X is anxiously seeking reassurance by frequently telling Ms A that he loves her.

    Ms A gave what appeared to be a frank account of the difficulties she experienced earlier in her life, which involved the use of drugs and alcohol and breaking the law. Ms A maintains she has not used any drugs since early 2016 and no longer drinks alcohol.  Ms A spoke very warmly of her relationship with Mr McCue.

    Overall, Ms A presented as a mature 31 year old who appeared to have a warm and loving relationship with her own son… as well as X and Y.  She appears comfortable with her present role as the children’s primary carer and is hoping to return to the workforce once B (sic) has started kindergarten or school.[3]

    [3] Page 19 of the updated family report prepared by Dr C and filed 19 January 2020.

11. I note that although Dr C’s updated report was annexed to an affidavit sworn and filed 19 January 2020, the report itself is dated 15 April 2019, and relates to interviews conducted and assessments made prior to the incidents which occurred in late 2019.

12. Moreover, the father stated that since the December 2019 incident, Ms A has voluntarily engaged with a psychologist and has had three sessions. Ms A’s psychologist has filed an affidavit in these proceedings which depose to the following:

    (Ms A) reports being the main carer for her partner’s children from a previous relationship for 18 months and that they had significant behaviour issues … significant toilet training issues.  With this, and lack of support at the time along with alleged abuse and associated IVO against the children’s mother, (Ms A) reported she had difficulty coping with it all.  She is seeking counselling … to improve her anxiety, coping strategies and relationships and benefiting immensely from this.  It is my opinion that she does not pose a risk to herself or others, is mentally fit and suitable to look after children.  She is help-seeking, building and accepting of supports.[4]

    [4] Affidavit of Ms E affirmed 5 March 2020 and filed 6 March 2020 at annexure B.

13. The father submitted that it was open on the evidence to conclude that the difficulties which Ms A and the father experienced, and which culminated in the children being returned to the care of the mother arose in significant part because of the abuse towards Ms A by the mother and there is therefore no proper basis for Ms A to be excluded from the father’s time with the children.

Mother’s proposal

1. In her affidavit filed 20 January 2020, the mother maintains that Ms A should not be present during any time spent between the children and the father, not only because of the risk of exposure to family violence between Ms A and the father but also because:

   (Ms A) has sent unpleasant and inappropriate messages to X from Mr McCue’s phone and Mr McCue has told me that (Ms A) had been treating X and Y badly.[5]

   [5] Affidavit of the mother sworn and filed 20 January 2020 at paragraph 93.

2. In the mother’s further affidavit filed 6 March 2020, the mother deposed that X received a message from Ms A in January 2020 which said:

   Not your dad X.  Never will be mate.  Blocked you all from this phone made.  You cannot contact him.  I will be blocking all numbers.  Don’t bother Ms Addington with your games.[6]

   [6] Affidavit of the mother sworn and filed 6 March 2020 at paragraph 117.

3. In response, the father deposed that the message exchange to which the mother referred came from the mother’s mobile telephone not X’s mobile telephone and that this was:

   (the mother) stirring (Ms A) knowing she was pretty angry and upset.  (Ms A) had told me that she responded in anger but new (sic) that the message did not come from X in the first place.  Any questions in relation to this need to be directed to (Ms A).[7]

   [7] Affidavit of the father affirmed 26 January 2020 and filed 28 January 2020 at paragraph 34.

4. Dr C’s updated family report noted that Ms A had “said that her former partner was involved in a number of burglaries and car thefts.  As a result, Ms A was given an 18 months suspended sentence, which she thinks she completed in 2017.” [8] Dr C then concluded that Ms A gave a ‘frank account’ of the difficulties she had experienced in life, including breaking the law.[9] 

   [8] Page 10 of the updated family report prepared by Dr C and filed 19 January 2020.

   [9] Page 19 of the updated family report prepared by Dr C and filed 19 January 2020.

5. Counsel for the mother also referred to Ms A’s affidavit filed 26 November 2018 at paragraphs 14 and 15 where evidence was given about her involvement in criminal matters.

6. It was submitted on behalf of the mother that limited weight ought to be placed on any assessments made by Dr C of Ms A on the basis that Ms A did not give Dr C a proper account of her role in the criminal activity in Queensland, having regard to the subpoenaed material from Queensland Police.

7. In addition, it is submitted for the mother that the police records from both Victoria show that, contrary to the suggestion now put by the father, not an isolated incident of family violence arising from the ongoing stress that Ms A was experiencing as a result of having the care of three young children without any proper support from the father.  It was argued that the subpoenaed material from Victoria Police demonstrates a history of violence and volatility between the father and Ms A dating back to 2017.[10]  Similarly, counsel for the mother pointed to the DHHS reports annexed to the father’s initial affidavit sworn 6 April 2017 and filed 8 May 2017 as evidence of his own volatility.

   [10] Exhibit A.

8. Counsel for the mother also suggested that the subpoenaed material bring into question the father’s account of the December 2019 incident; namely, the stress on Ms A of the children’s behaviour.  These subpoenaed documents record the father and Ms A had:

   … recently moved to their current address from Town F and have been moving for the past week.  Tensions have been escalating over the past week due to the stress of moving, (Ms A) not wanting (the father) to see his children from his previous relationship.

   …

   On 28/12/19 (the father) and (Ms A) were driving in the car when they began having an argument over their relationship and the (father’s) children from his previous relationship.  (Ms A) was driving at the time grabbed the (father) by the ear scratching his ear and causing scratches to his face.  The (father) got out of the vehicle at the next set of lights and walked home.[11]

   [11] Exhibit A.

Independent Children’s Lawyer’s proposal

1. The ICL did not support any change to the current orders, save for the inclusion of a restraint on either party exposing the children to family violence. Both parties indicated they would agree to an order in those terms.

2. The ICL referred to history of this matter including involvement with DHHS from 2015 onwards, and that this matter was in the Children’s Court of Victoria for a considerable time.  The ICL further noted that after a period in care, the children were returned to the mother’s full-time care in 2016.  About a year and a half later, the mother placed the children with the father and with Ms A.  The children then lived with the father and Ms A for about a year and a half. 

3. The ICL then submitted that a shift occurred with respect to Ms A’s attitude and the difficulties she was experiencing with the children and their behaviour.  Be that as it may, it was aptly submitted for the ICL that following the November 2019 incident, these children were once again placed in the care of the mother, after a year and a half of being with their father, and after having previously been shifted ‘from pillar to post’. 

4. The ICL also submitted that the subpoenaed material from Victoria Police was concerning in circumstances where the father informed the police that it was Ms A who no longer wanted him to spend time with the children.

5. In addition, the ICL expressed concern that the text message which Ms A sent and which the mother complains about was addressed to the child X.  Irrespective of whether Ms A thought it was the mother that she was sending it to, it was addressed to X and would have been devastating if he had received and read the message. 

6. The ICL seeks that the children be given time to reconnect with their father.  It was submitted for the ICL that the children know their father and they love him, having lived with him for 18 months.  It is appropriate for the children to spend time with their father in a safe place, and therefore the ICL does not support Ms A being present during the children’s time with the father at this stage.  The ICL submitted that this distance will also allow Ms A to receive further therapeutic assistance and the parties to engage with couples’ counselling. 

7. The ICL further submitted that following the December 2019 incident, the father and Ms A need time to settle down and avoid escalations of conflict and further family violence.  It was submitted for the ICL that these children have seen so much turmoil that it is not appropriate for them to potentially be put in the path of further family violence.  There is much force to these submissions.

Consideration

1. The issue for determination at this interim stage is whether there should be a lifting of the restriction on Ms A from attending any time spent between the children and the father.  The father also seeks orders that his time with the children be specified, rather than as agreed with the mother per the current interim orders.

2. For the reasons which follow and in circumstances where this matter is listed for a final hearing on 20 July 2020, I am not satisfied that it is in the children’s best interests for the orders sought by the father to be made. 

3. I agree with the ICL that these children need the opportunity to spend time with their father in a safe environment and without the risk of being exposed to family violence.  I also agree that it is appropriate that a further order be made restraining both parties from exposing the children to any family violence.

1. In Goode and Goode (2006) FLC 93-286, the Full Court of the Family Court considered, amongst other things, how interim proceedings are to be conducted having regard to the relevant factors that the court must have regard to under Part VII of the Act. Relevantly, the Full Court said:

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is ‘significantly curtailed’.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.[12]

   [12] Goode and Goode (2006) FLC 93-286 at [68].

2. The Full Court also made the following general comments about how interim proceedings ought to be conducted:

   In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

   In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   …[13]

   [13] Goode and Goode (2006) FLC 93-286 at [81]-[82].

3. I have identified each of the parties’ proposals above.

4. The sole issue for interim determination in this matter is whether Ms A ought to be permitted to be present during any time the children spend with their father. 

5. I have also set out the evidence of the parties above.

6. The agreed or uncontested facts in relation to this issue are as follows:

   a)after having the children for some 18 months in his care with Ms A, the father removed them from his home and returned them to the mother’s care;

   b)the father took this action following the November 2019 incident, on his case, because:

   i)Ms A was struggling with the care of X and Y;

   ii)X and Y were being difficult around B, pushing him over and breaking his toys;

   iii)Ms A was not being supported by the father; and

   iv)Ms A told the father that she was not coping and he had to take the boys away;

   c)notwithstanding the return of the children to the mother’s care, tensions continued between the father and Ms A culminating in the December 2019 incident which precipitated the police being called by the father and an intervention order being obtained by the father against Ms A;

   in January 2020, Ms A sent a text message, the terms of which are set out above; and

   d)Ms A states that she believed that she was communicating with the mother when she sent this and did not believe that she was sending the message to X. 

7. It is also not contested that following the making of the interim orders on 28 January 2020, the children have spent some time with the father.  The father complains that it has not been as much time as he would like; however, his affidavit outlines numerous occasions when he has spent time with the children since late January 2020.

Section 60CC factors

1. The primary considerations of the Act are:

   a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and

   b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Orders were made by consent on 28 January 2020 for the children to spend time with the father as agreed between the parties. Leaving aside the amount of time which the children have been able to spend with the father since November 2019, there does not appear to be a dispute that the children ought to have a meaningful relationship with both the father and the mother.

3. The real issue at this interim stage is whether there is a need to protect the children from the potential exposure to physical or psychological harm, in particular from exposure to family violence. 

4. The uncontested evidence is that there was an incident of family violence between Ms A and the father as recently as 28 December 2019.  It resulted in the father calling the police and an IVO being obtained.  Whilst it is not possible to make any definitive findings about the extent of family violence between the father and Ms A, I accept that there is some evidence before the court to suggest that this was not the first incident of family violence between them.  Whilst the subpoenaed material from Victoria Police related to an incident which occurred in 2017, it does run counter to the father’s case that the December 2019 incident was the result of the stress caused on the relationship by the conduct of the mother towards Ms A and the conduct of the children both towards Ms A and towards B.

5. To the extent that the father relies upon assessments of Ms A made by Dr C, minimal if any weight can be given to those assessments at this interim stage of the proceedings for the following reasons:

   a)Dr C’s assessment was made prior to the November 2019 and December 2019 incidents; and

   b)the mother queries whether the account given to Dr C of Ms A’s involvement with police in both Queensland and Victoria was accurate and whether any inaccuracy would materially alter his assessment. 

6. This ultimately is an issue for trial; however, the subpoenaed material from Victoria Police which was tendered does raise concerns about whether Dr C was given a full and frank account by Ms A of her criminal history.

7. Of equal, if not greater, concern in considering the risk of exposing the children to psychological harm is the text message which Ms A sent in January 2020. Ms A disputes sending this message to X and believed that she sent it to the mother. Ultimately, that is a factual issue which may need to be tested in the course of the final hearing. However, at the very least, the content of this text message had the potential to be very damaging to the child X if he in fact read it.  It was addressed to X. If he were to see it, he would have no reason but to think that it was intended for him.

8. In balancing these two competing considerations, the court is required to give greater weight to the need to protect children from physical or psychological harm.

9. As the issue before the court is whether Ms A ought to be permitted to attend time with the children and their father, many of the factors in section 60CC of the Act are not directly relevant. For instance, I note that there is no evidence before the court as to the children’s views on the issue before me.

10. For those reasons and having regard to the fact that this matter is listed for a final hearing in a few months, I am not satisfied that it is in the best interests of these children for Ms A to be present during any time spent between the children and the father at this stage. 

11. As stated by the ICL, it is imperative for these children to be able to maintain a relationship with their father in an environment which is safe and which will not expose them to family violence.  I accept that Ms A has engaged with a psychologist and commend her for engaging in that treatment.  It is hoped that Ms A will be able to continue to progress that treatment between now and the final hearing.  I also note that the father has given evidence that he and Ms A intend to engage in couples counselling which has not yet commenced. 

Conclusion

1. I therefore do not propose making the orders sought by the father.

2. The father has also sought to reagitate the question of his time with the children, specifically the length and frequency of that time.  He argued that the mother has not permitted him to spend sufficient time with the children.  The mother indicated that she is not opposed to a more structured time arrangement for the father’s time with the children and would agree to the father spending day time with the children on Saturdays in the City G region. 

3. The parties consented to an order for time between the children and the father to occur as agreed between the parties on 28 January 2020. Further, the interim hearing was listed on the discrete issue of whether Ms A should be excluded from the father’s time with the children. In circumstances where some time has been occurring between the father and the children, including overnight time at least with Y on the father’s own evidence, and given the children’s parenting arrangements will be reconsidered at the final hearing in less than four months’ time, I do not propose reopening the question of structured time with the father at this stage.

4. I do propose making a mutual order restraining the parties from exposing the parties to any form of family violence and I so order.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:   13 March 2020