McKenzie and McKenzie

[2016] FCCA 2455

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKENZIE & MCKENZIE [2016] FCCA 2455

Catchwords:
FAMILY LAW – Parenting – interim application – allegations of mental illness threats to kill and of rape – children’s time with father to be supervised.

Legislation:

Family Law Act 1975, ss.60CC, 60CG, 61DA

Applicant: MR MCKENZIE

Respondent: MS MCKENZIE

File Number: DNC 271 of 2016

Judgment of: Judge Young

Hearing date: 22 August 2016

Date of Last Submission: 22 August 2016

Delivered at: Alice Springs

Delivered on: 31 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Czislowski

Solicitors for the Applicant: Ward Keller Lawyers

Counsel for the Respondent: Ms Bolton

Solicitors for the Respondent: Northern Territory Legal Aid Commission

ORDERS

AS AMENDED

1. That order 2 of the orders made 25 July 2016 be varied to “That the children X born (omitted) 2009 and Y born (omitted) 2011 spend time with the father from 9.00am until 5.00pm each Saturday and from 8.00am to 5.00pm each Sunday with the paternal grandmother or the father’s sister to be substantially present during this time”.

2. That the children have telephone contact each Monday, Wednesday and Friday at all reasonable times, with the parent the children are residing with to place the call to the other parent and that the parent the children are residing with is to place the call to the other parent at 6.00pm on each of these days.

3. That order 9 of the orders made 25 July 2016 be amended to “That Mr J surrender to a licensed gun dealer all firearms recently sold to him by his brother Mr L including firearms identified in paragraph 43 of the father’s affidavit filed on 21 July 2016 and those firearms are not to be retrieved by him or anyone on his behalf without further order of the Court”.

4. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born (omitted) 2009 and Y born (omitted) 2011 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

5. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

7. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

8. Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born (omitted) 2009 and Y born (omitted) 2011 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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 23 December 2016.

9. The family report to deal with the following matters:

   (a)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;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

10. 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 Case Coordinator Child Dispute Services.

11. The parties are to telephone the Case Coordinator Children Dispute Services on (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

12. 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.

13. 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 be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

    B.Section 121 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.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 13 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

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

15. Upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

16. In the event any party or the Independent Children’s Lawyer in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 21 November 2016 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

17. That the father file and serve a further affidavit dealing with his compliance with order 9 of the orders dated 25 July 2016 and order 3 of today’s orders within 7 days.

18. That the matter is adjourned to 7 February 2016 at 9.30am for further directions.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the change in order 2 removing ‘with the parent the children are residing with to place the call to the other parent’ and replacing it with ‘and that the parent the children are residing with is to place the call to the other parent at 6.00pm on each of these days’.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 271 of 2016

MR MCKENZIE

Applicant

And

MS MCKENZIE

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an interim parenting matter about two children, X and Y, who are aged seven and five.  The parties separated on 17 June 2016 in circumstances that are heavily contested.  The mother left the former matrimonial home and travelled to Queensland with the children and stayed there with her mother and aunt.  The father sought a recovery order.  The mother initially resisted that but returned to Darwin voluntarily sometime after 11 July 2016.  She does not, as I presently understand it, seek to relocate to Brisbane as her mother and aunt have returned to the (country omitted).

2. The mother alleges a history of family violence and controlling behaviour against the father.  She alleges that her departure on 17 June 2016 was precipitated by the father threatening to shoot her if she did not have sex with him.  She alleges on the morning of that day she was, in fact, raped by him.  Her affidavit material alleges that the father raped her during the relationship and threatened to kill her on other occasions.  Her mother filed an affidavit from the (country omitted) that deposes to having witnessed the father, as I understand it – and there are some drafting problems with it as it stands at the moment – but I understand it to allege that the maternal grandmother saw the father lift a rifle to his shoulder and point it at the mother in December 2015.

3. The maternal grandmother alleges also in that affidavit, on another occasion, witnessing the father grab the mother by the hair and on another occasion pushing her so that she fell.  She also says that she saw the mother slap the father.  She said that she saw the father strike X with an open hand.  The mother alleges the father suffers from mental health problems and continues to take medication for those mental health problems.  She alleges that the father associates with members of the Hell’s Angels motorcycle club and she alleges that a party was held at the former matrimonial home in 2014 where such people attended and she deposes that she was told that methamphetamine was available.

4. The father denies all of these allegations.  He denies assaulting the mother.  He denies threatening to shoot her and he denies raping her.  In relation to his mental health, he says that he sought psychological and psychiatric help some years ago in 2010 for various problems he was having with concentration and low energy.  Some medical records were produced on subpoena, including a report from a psychiatrist, Dr D.  This seems to indicate that the father was referred to Dr D after making the complaints that I have referred to above.

5. The report from Dr D dated 15 February 2010 said – and I will not quote all of it but I will quote some relevant parts – said “barely sufficient symptoms to meet DSM criteria for major depression”, and “does meet ICD criteria for mild depression.”

6. It appears from the report that the father was prescribed Sertraline, which, as I understand it, is an antidepressant.  It is clear, I think, from Dr D’s report that there were not strong indicators for depression and there was, certainly at that time, no history of mental illness.  The father ascribed his problems to him taking Champix, which is an anti-smoking drug.  The father later said that he had taken Sertraline until 2012 but was then diagnosed with sleep apnoea.  I had permitted some cross-examination of the father in relation to this issue and it was put to him that he had continued to take antidepressant medication past 2012.

7. He denied that.  The mother subsequently gave some oral evidence (without leave being sought) that the father continued to take two white tablets each day for “his head”.  The mother did not know what the medication was and the precise allegation – that is, that he took two white tablets each morning for his head – had not been put to the father in cross-examination.  I consider that there is no evidence that the father suffers from any current mental illness.  His current general practitioner provided a letter which said that he, the general practitioner, had been treating the father since 2013 and had never seen any sign of mental illness.

8. In relation to the mother’s allegation or allegations of rape and threats to kill, I also permitted limited cross-examination.  The mother made a report to the police on 17 June 2016 – that is, the day she left the former matrimonial home.  The police report referred to a “verbal only argument” but it does record that the mother complained that the father wanted her to return to the marital bed and the mother said – I quote from the police report – “Mr McKenzie threatened that if she went to the police that he would shoot her.  He had made these threats before and she did not wish to get a DVO because she did not want him to lose his firearms licence.”

9. In my view, the report is unsatisfactory in its terms because it does not identify what the mother might have reported to the police, which, if reported to the police, would have resulted in – according to the mother, at least – the father shooting her.  So as I said, it is unsatisfactory because it does not appear to be necessarily internally consistent.  There is no allegation of rape recorded in the police report.  The mother was adamant in cross-examination that she had provided a detailed complaint to the police about that.

10. I am conscious that corroboration is not required in relation to allegations of family violence or, indeed, of criminality more generally.  However, the evidence is not satisfactory and I am unable to make any findings about these allegations.  As I mentioned above, the mother left Queensland and returned.  She is now living in secure accommodation with the children in Darwin.  The father proposed that I make interim orders for shared care.  I am not prepared to do that because I consider the allegations of family violence to be extremely serious and I have been unable to resolve them or, indeed, reach any conclusion as to their plausibility.

11. I consider that while there is no risk of violence towards the mother while she remains living in a secure place, I am concerned about the father’s capacity as a parent and the attitudes to parenthood if there is any truth in these allegations.  The present interim orders are that the children spend time with the father from 9.00am to 5.00pm each Saturday and from 8.00am to 5.00pm each Sunday to be supervised by the paternal grandmother and/or the father’s sister who must be present throughout.  The current orders also provide for the children to speak to the father each Tuesday and Thursday at 6.00pm. 

12. The mother seeks a continuation of those orders and opposes additional time for the father, saying that, in addition, he works long hours and the mother has been the primary caregiver.  She makes criticisms of the father’s capacity to physically care for the children and makes complaints about the children returning from their time with the father tired and she suggests that the children are, in fact, largely cared for by the paternal grandmother.  I cannot make any findings about those allegations. 

13. Another factor that needs to be addressed is that the father agreed at an earlier point to take steps to secure firearms that were licensed in his name.  I am satisfied that he has surrendered his licence but there was some confusion about whether the gun dealer who originally was to take possession of the firearms, in fact, has done that.  I am going to require a further affidavit from the father just to make sure that that issue has been properly dealt with. 

14. Neither party in this case or in the interim hearing suggested that I should reach any conclusion about shared parental responsibility and I expressly find that pursuant to section 61DA(3) of the Family Law Act 1975 that there is to be no presumption of equal shared responsibility in this proceeding or at least in relation to this interim part of the proceedings. 

15. Under section 60CC of the Family Law Act 1975 the best interests of the children are paramount and that is determined according to section 60CC(2) by the need for the children to have a meaningful relationship with both parents and for them to be protected from family violence with the second consideration being predominant. I must take into account section 60CC(2) and section 60CC(3) and I do so. The matters in section 60CC(3) that I consider of particular relevance are section 60CC(3)(f), the capacity of the parents and I have, as I say, said that I am unable to reach a conclusion about the truth or otherwise of the allegations or, indeed, their plausibility but as I have said, I consider the allegations to be very serious and if true, would I think, reflect on the father’s capacity as a parent and would also reflect in terms of section 60CC(3)(i), his attitude to parenthood. I also have to take into account under section 60CC(3)(j) any family violence. Those parts of section 60CC(3) are most relevant in my view. I also have to take into account under section 60CG(1), subject to the extent that it is consistent with the children’s best interests, orders that do not expose a person to an unacceptable risk of family violence.

16. Accordingly, I do not propose to vary the existing interim orders in any significant way.  However, I do note that the paternal grandmother is planning to move into the former matrimonial home with the father and she should be substantially present when the children are with the father.  So I do propose to vary the existing orders slightly to remove the requirement for strict supervision by the paternal grandmother or, I think, the paternal aunt but the order will be varied only to the extent that the substantial attendance of the paternal grandmother or the paternal aunt is required.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 22 September 2016