Meadis and Meadis and Ors
[2018] FCCA 3787
•15 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEADIS & MEADIS & ORS | [2018] FCCA 3787 |
| Catchwords: FAMILY LAW – Application in a Case – Paternal Grandparents’ application – application for time with children – significant involvement in the children’s lives – overnight time. |
| Legislation: Evidence Act 1995 (Cth), s.128 Family Law Act 1975 (Cth), ss.4AB, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 60CC(3)(i) |
| Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852 KB & TC [2005] FamCA 458 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode [2006] FamCA 1346 H&H [2005] FamCA 805 Morgan & Miles [2007] FamCA 1230 Paksandy & Paksandy [1999] FamCA 1889 SS & AH [2010] FamCAFC 13 Weissensteiner v R [1993] HCA 65 |
| Applicant: | MR MEADIS |
| First Respondent: | MS MEADIS |
| Second Respondents: | MR G MEADIS AND MS H MEADIS |
| File Number: | MLC 11834 of 2016 |
| Judgment of: | Judge Stewart |
| Hearing date: | 14 November 2018 |
| Date of Last Submission: | 14 November 2018 |
| Delivered at: | Shepparton |
| Delivered on: | 15 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carne |
| Solicitors for the Applicant: | SMR Legal |
| Counsel for the First Respondent: | Mr Nicholson |
| Solicitors for the First Respondent: | Harris Lieberman Solicitors |
| Counsel for the Second Respondents: | Mr Puckey |
| Solicitors for the Second Respondents: | Dawes & Vary Riordan |
| Counsel for the Independent Children’s Lawyer | Mr McLeod |
| Solicitors for the Independent Children's Lawyer: | Joliman Lawyers |
ORDERS
Pursuant to section 11F of the Family Law Act 1975 the Mother and the Paternal Grandparents attend a Child Inclusive Child Dispute Conference on 30 April 2019 with a Family Consultant nominated by the Director of Child Dispute Services to discuss the welfare of the children X born … 2006, Y born … 2008 and Z born … 2010 (collectively, “the children”) and endeavour to resolve the differences between them. The Mother is to attend at the Melbourne Registry (305 William Street, Melbourne) with the children at 9.00am and the Paternal Grandparents are to attend at 10.00am.
Upon the oral application of Counsel for the Paternal Grandfather, the Paternal Grandfather and Paternal Grandmother be jointly joined to these proceedings as Second Respondents, and for the purposes of this order they file a Response within 28 days of the date hereof.
The proceedings are adjourned to 16 November 2018 at 10.00am for mention.
The proceedings are further adjourned to 14 May 2019 at 2.00pm for interim defended hearing (“the adjourned date”).
The reasons of this day be transcribed, revised, placed on the Court file and made available to the parties.
AND THE COURT NOTES THAT:
A.In the event that the Father wishes to attend via Videolink on the adjourned date, the solicitors for the Father must notify Chambers of same no less than 21 days prior to the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Meadis & Meadis & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SHEPPARTON |
MLC 11834 of 2016
| MR MEADIS |
Applicant
And
| MS MEADIS |
First Respondent
| MR G MEADIS AND MS H MEADIS |
Second Respondents
REASONS FOR JUDGMENT
Revised from Transcript
In November 2017, I heard proceedings in relation to three children, X who is now 12, Y who is 10 and Z who is nearly nine, over the course of three days. At that time it was the Mother’s application to relocate with the children to the City J area. I delivered reasons on 21 December 2017 that spanned 37 pages and 176 paragraphs. For the reasons that were set out then, I declined the relocation of the children, and consequent upon the determination of the relocation application, the parties agreed that there should be a week-about arrangement between the Father and the children.
The Mother accepted the outcome. She remained in Town A and remained in a home approximately three streets from where the Father was living with his parents. The Father continued to live with his parents, and therefore the children were spending a week-about arrangement very close to their schools and in close proximity to each of their parents. For today’s purposes I note that at that time, the Mother raised family violence issues. The Father also raised family violence issues.
At that time I determined that because of the way the case was conducted, the family violence issues raised by the Mother were found proved, particularly in relation to issues of the Father keeping her under surveillance. Nevertheless, I determined that it was in the children’s best interests that they remain living in the Town A area. I also made a finding that the Mother had also engaged in behaviour that was described as family violence. These reasons should be read in conjunction with the previous reasons to give a complete background of what has occurred in this family.
The Father achieved orders that were sought by him. The proceedings were hard fought, and although I made some observations about his character and demeanour, I determined that he was an appropriate person to be involved in the children’s lives in a significant way. Certainly in terms of the findings, there was a suggestion that it was he who had been more intimately involved in the children’s care than the Mother, at least in the latter stages of their relationship.
The Father had engaged in some unusual behaviour leading up to that final hearing in November 2017. For instance, there was a passage of evidence which was proved, and I think conceded by the Father, that shortly after the parties’ separation he had entered the home of the Mother through the roof and taken some chattels. There was also evidence that he attended the Mother’s home in breach of an Intervention Order in a very agitated state, exhibiting suicidal ideation. There was evidence that he gave the Mother a USB stick which suggested that he had the Mother under close surveillance for a long period of time.
There was also evidence, which I accepted, that the Mother was in fear of the Father. There was evidence at one stage that she was sleeping with a knife under her pillow. I made an observation at that time that whilst she was criticised for that by the Father, I accepted that her fear was real and also that it had an objectively reasonable basis at that time. So it is within that context, with the Father engaging in clearly inappropriate behaviour at the time and involving the children in the proceedings, that he nevertheless achieved the result that he sought. In that context, the events that took place on 24 July 2018 are particularly devastating.
The events of 24 July 2018 defy belief. The Father has not at this stage entered a plea, and he is currently held on remand. He attended via video link yesterday. The Father, for reasons that were set out by his Counsel, feels that he cannot in these proceedings plead in relation to the events of that day. He does not seek a Certificate pursuant to section 128 of the Evidence Act 1995. Therefore, there is no information of the incident from the Father’s point of view, except what I can cobble together from external facts.
The external facts are, I am told, that he is pleading not guilty. I am told that there is a committal hearing which will take place in May 2019. I am told that he does not want to plead or put any material before this Court in relation to the event, which I will come to shortly, as it may impact on his capacity to cross-examine witnesses during the committal hearing, by giving the witnesses advance knowledge of what it is that he says about the event.
What flows from that is that it is likely, at least on the present state of the facts, that the Mother will be required to give evidence at that time. At least on the present state of what is put before the Court, what flows from that is that she will be cross-examined on behalf of the Father. The uncontested facts in relation to the criminal proceedings are that he has twice applied to be bailed, once in the Magistrates’ Court of Victoria and once in the Supreme Court of Victoria. Those bail applications have been declined and he is currently being held on remand.
I do not know whether he will make another bail application. I am told that it is likely that he will, if he is remanded in custody pending a trial. If the committal hearing results in the Father being indicted to a trial, it is likely that trial will take place in about 18 months to two years’ time. I assume that depending on the outcome of the committal proceedings, the Father at that stage will again consider whether or not he proposes to put evidence before this Court in relation to what occurred.
There is a suggestion in the material that I have read, which is extensive, that there is a concession by the Father to the Department of Health and Human Services (“the Department”), which is set out in their report, that there existed some sort of note, that he thought invited him to be at the Mother’s home on 24 July 2018. There is also a suggestion, and again, I am summarising, that something happened with a Facebook page where he was tagged. Other people might know more about this than me, but I believe that means he was named on a Facebook page with an accompanying photograph, which was then removed. That is the extent of what I can cobble together on the evidence that is available to me, in terms of what the Father might say in relation to what occurred on 24 July 2018.
I am about to describe what occurred on 24 July and I make the observation that, at this stage, these proceedings are interim and there are the constraints with respect to interim proceedings which, at first instance, were set out in the case that everybody knows of Goode & Goode [2006] FamCA 1346 (“Goode”), where the Full Court said at paragraph 68:-
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry 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.
Considering that, it is abundantly clear that, in the context of this case, the Father will not be in a position to exercise any time with the children, at least until May 2019, and possibly for a long time after that. In Eaby & Speelman [2015] FamCAFC 104 (“Eaby”), the Full Court referred to the observations of the Court in Goode with regard to disputed facts in interim hearings. In discussing paragraph 68 to which I have just referred, they said:-
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
Their Honours went on to say that findings in disputed interim proceedings should be couched with great circumspection. The Full Court in SS & AH [2010] FamCAFC 13 also said as follows at paragraph 100:-
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes 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. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
This is an unusual case because the Court has been deprived of even knowing whether certain facts are being put in issue. The Court is further deprived of information, if any, which the Father says about the incident, because of the Father’s position in not putting evidence before the Court. This has caused me to reflect overnight about how I should deal with the Father’s failure to put any evidence before the Court.
I refer to the case of Weissensteiner v R [1993] HCA 65 (“Weissensteiner”), where their Honours, Mason CJ, Deane and Dawson JJ said this about the proper approach to unchallenged evidence at paragraph 28:-
…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.
Counsel for the Father quite properly and forcefully put a submission to me that his client was at a great disadvantage, given the pending criminal proceedings. He said, in my view, every single thing that could possibly be said in support of his client yesterday when the matter proceeded on this interim basis. I offer no criticism at all of Counsel for the Father in putting these matters before the Court. Equally, however, I am of the view when I consider what their Honours said in Weissensteiner and the comments in Goode and Eaby, that I should, at this interim stage, accept the evidence of the Mother as it is set out in its entirety in the affidavit material.
In my view, there is little other alternative available to me at this interim stage other than to accept that it is likely that her evidence is correct. That does not mean to say that a different conclusion may not be reached at trial. Certainly, when the Father puts his case, the matter will need to be considered again in the fullness of all the various issues that pertain to this case.
Accordingly, I propose now to turn to what happened on 24 July 2018.
The Mother came home from work at around 3.10pm. The children were due to be in her care at that stage and were to return home from school shortly. The Mother tried to put the key in the back sliding door of the house. The Father came around the corner from the back of the house. He was not supposed to be there. This must be viewed in light of the fear that I accepted that the Mother had of the Father and issues as to surveillance, which I found in the earlier proceedings.
The Father’s presence surprised the Mother. He grabbed her and she started screaming. He told her to be quiet and dragged her around to the back of the house. He asked her if the security cameras were working and she said yes. I pause here to observe that the evidence in its entirety, including the evidence that is contained in the annexures to the affidavit where there are two police statements made by the Mother, suggest that the security cameras had been installed by the Mother due to her fears of the Father and to her concerns about being under surveillance by him.
The Father pushed the Mother to the ground and told her to stop screaming for help. The Mother told him that she was expecting the children but he told her to stop talking and stop making noise that the neighbours could hear. The Father sat on top of her, and while he was sitting on top of her he put tape on her mouth, which is described as a thick grey PVC style tape. The Mother managed to wriggle free and pull the tape off on one or two occasions, but he reapplied the tape each time. The Father picked up the Mother’s keys, and as he did so, she tried to run off. He dropped the keys and grabbed her again. He put her in a tight headlock and the Mother says that she could not breathe.
The Father wrestled the Mother to the ground, and, she says, started bashing her head against the ground a couple of times. She says she became worried that he was going to knock her out. The Father tied up her hands with cable ties, but she managed to get out of the cable ties and throw them on the lawn. He threatened to punch her if she continued to resist and not co-operate. He then sat on her while she was faced down and cable-tied her hands again. The Mother saw some items fall from under his jumper, including yellow ear plugs and a black eye mask. The Mother told him that she wanted to go to the side door but he said words to the effect of, “we’re going to use this door”.
The Father pushed her inside the house and locked the door behind her. He forced her to the floor in the back of the house and then cable tied her feet together. By this stage, she had forcibly been pushed into the house, restrained by both her hands and her feet, and the Father had assaulted her. As he pulled a cable tie from under his jumper, the Mother noticed that he had a rope tied around his waist. She said to him, “you have a rope”, and he said, “I’ve got things under here that you don’t even want to see”.
The Mother asked him “what are you going to do when the boys get here?”. It must be borne in mind that they were due home very shortly. The Father said “they won’t, mum will be here soon.” I will come back to that passage of evidence as it relates to the paternal grandparents at the conclusion of these reasons. The Mother said “so your mum knows about this?” and the Father replied “yes, I told her I was coming here to talk to you”. The Mother asked him, “are you going to kill me?” and he replied, “it depends what you tell me but I probably will and then I will go and kill your family”.
It was at this point that Z came to the back door. The Mother screamed and the Father told her to “shut up”. Z is 8 years old. The Father stepped outside and closed the door behind him, and the Mother heard him tell the children that they needed to go to “nanna’s” house. “Nanna” is the Paternal Grandmother who, although not yet a party to the proceedings, joins with the Paternal Grandfather’s Application in a Case that they be granted some fortnightly overnight time with the children.
While the Father was outside, the Mother, with her feet restrained, jumped through the house and managed to unlock the front door. She jumped to a neighbour’s fence and threw herself over it. She saw a young girl who lives down the street walking past and she screamed to that girl, “call the police, [the Father] is going to kill me”. The Mother then jumped to a neighbour’s front door and banged on it until they let her in. She was hysterical. The police were called and she made a statement. She has made a total of two statements, which are both annexed to her material.
The Mother described the Father as very controlled and emotionless throughout the assault. She believed that he had planned the attack for some time and that he was capable of killing her. I accept the Mother’s statement in this regard. I accept that this must have been a traumatic event in the extreme and that she feared for her life. I accept that no matter what explanation the Father gives for this, that this is violence at the highest end, and I accept that objectively, the Mother has good reason to be terrified of the Father. I further accept that, subjectively, she is terrified of the Father, and I will come to the psychologist’s report in a moment.
The Father was apprehended and he is still on remand at this time.
It is in that context that I consider the Mother’s application to relocate to the City J area on an interim basis. The matters put by Counsel for the Mother are true. The eldest child in this case, X, has some special needs and is now in grade 6 at Town A-12 College. When his presentation was assessed in 2017, X was assessed at the borderline level of cognitive functioning and meeting the criteria for Autism Spectrum Disorder. It seems that since that time he has been assessed as being eligible for a teacher’s aide at school and has achieved that, whereas in 2017 he had not yet had the teacher’s aide allocated to him.
I spent a considerable period of time during the previous judgment assessing the benefits that flowed to X by remaining in the Town A area. I assessed at that time that he would suffer a great deal of difficulty if he were to move to the City J area, and that the supports that were available to him were only available to him in Town A. I accepted the evidence of a doctor that at that time there were real risks associated with X undertaking a move, and that those risks were intangible but definitely present. I accepted that the risks at that time might impact on him more widely than just how he goes at school, and that they had the capacity to impact on his emotional and psychological development, how he related to his peers and how he would progress through high school.
In assessing this case, I assess it on the basis that those risks are still extant in relation to X. I also assess that the move proposed by the Mother is likely to be worse for him now than it would have been had it been planned from 2017. When the move was first proposed by the Mother she was not proposing a move before 12 months, so there would be a significant lead-up period for him in ensuring that there were appropriate supports in place at that time. What X is now faced with is a move on short notice without any of that lead-in period that might have otherwise been available to him.
I also note, that while sensibly not pressed by Counsel for the Father, that the Father is critical of the children’s exposure to the consequences of the incident. There is some suggestion in the Department’s report that the Mother told the children of the incident. She showed the children some physical bruising that she suffered as a result of the incident, and also told the children that their Father is in jail. However, I am struggling to understand how they might have been shielded completely from the consequences of this incident given their proximity to it and because the Father is in jail. The children were spending a week about arrangement with him, and quite clearly they are not doing that anymore. To expect the Mother to have had no adverse painful or traumatic response to the incident is quite unrealistic. Sitting back dispassionately, those of us who assess these issues might think that it could have been handled differently. However, it is impossible to assess and consider the Mother’s actions and reactions to this violent incident without appreciating how the consequences reverberate through her life and the impact on her wider family, and the shock and distress that she must have suffered as a result.
In my view, it is unwarranted to critically judge the Mother’s actions following the event without appreciating that the sole reason that she was in this position is as a result of the Father’s criminal assault upon her.
When assessing relocation issues, there are a number of propositions referred to in the cases that emerge. These are equally applicable to interim cases as they are to final cases, the only difference being that there will be a further assessment in due course. I accept that the decision on this interim basis is likely to set the scene for issues on a final basis and that was urged upon me by Counsel for the Father. In essence, what was put by Counsel for the Father was that the decision that I make now is likely to be the decision in the longer term. I accept that that is probably so, but it certainly does not stop argument with respect to what should happen in the longer term. The case will need to be assessed at that time. Quite frankly, I do not know when that is going to be. I do not know whether the Father will be committed for trial at this stage, nor what his defence is. Nor do I know if he is committed for trial, whether he will be convicted at the longer term. If he is convicted, I do not know what the outcome of the proceedings will be. There are a number of unknowns at this stage. Nevertheless the first proposition derived from Morgan & Miles [2007] FamCA 1230 (“Morgan & Miles”) is that in relocation cases are that the children’ best interests remain the paramount but not the sole consideration. The second proposition, again from Morgan & Miles, is that a parent wishing to move does not need to demonstrate compelling reasons. Thirdly, again from Morgan & Miles, a child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
There is also the proposition derived from Paksandy & Paksandy [1999] FamCA 1889, that there can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as whether the relocation should be permitted. Finally, from a case of KB & TC [2005] FamCA 458, the proposition that the proper approach to be adopted in relocation cases is a weighing of competing proposals having regard to the relevant factors of the now section 60CC of the Family Law Act 1975 (“the Act”), and a consideration of other relevant factors including the right of freedom of movement of the parent who wishes to relocate bearing in mind that ultimately the decision must be one which is in the best interests of the child.
There is, sensibly, no dispute and no quibbling with my finding in 2017 that the younger two children are resilient. At paragraph 131 of the judgment I said and noted that much of the focus in that case was on X because of his special needs:-
…However, I do note that Y and Z are described by both parties and Ms B in glowing terms, and they seemed to me to be remarkably delightful and resilient children. No doubt, that is as a result of the parental capacities of the respective parties and their joint commitment to the welfare of their children. Unlike X, I have no doubt that Y and Z would manage a change to the City J area in an appropriate and relatively smooth way, particularly given the Husband’s proposal to eventually relocate if the Wife’s application for relocation was granted.
I have not been told, but I assume, that the Father’s intention to move consequent upon the relocation has not changed. Again, these issues will need to be assessed when the matter comes before the Court in the longer term.
Therefore I assess the matter in the following way. Up until 24 July 2018, the children had an intimate relationship with the Father, and also with the Paternal Grandparents, as the week about arrangement in the Father’s care was taking place in the context of the Father living in the Paternal Grandparents’ home. The Paternal Grandparents enjoyed the children’s company for all of that time and were involved with them in an intimate way. I assess the case on the basis that the children sadly are missing their Father and have been traumatised by his abrupt dissection from their lives.
I also assess the case on the basis of what they children said to the Department during their investigation between July and August this year, which I will record below. A report had been received by the Department that there were concerns in relation to the children’s exposure to the family violence incident. The Department interviewed the Mother, X, Y and Z. It was reported as follows:-
Z explained they had been travelling a lot and that he had been missing days of school. He was aware of the family violence incident stating “dad attacked mum, she feels a bit unsafe”. Z explained he feels safe with the paternal grandparents however he stated “mum says they make her feel unsafe so I believe her”. Z expressed he was feeling sad that Mr Meadis has gone to jail and he wished his mother and his father loved each other. Z stated he feels worried in his dreams.
I now turn to Y, and the Department report that:-
Y was aware of the incident of family violence. Y stated “because dad just attacked mum and she’s worried about others of the family will try and kidnap us”. Y expressed that he was “very sad” about Mr Meadis and would like to see him.
In relation to X:-
X expressed he wants to see his father and feels sad about not being able to. He stated “he might be in jail” and the reason “mostly for almost killing my mum”. X informed he wished he could make his life better and if he could change one thing it would be “mostly seeing my dad again”.
As I referred to earlier:-
Ms Meadis stated that the children had asked her why they were unable to see their father following the incident. Ms Meadis acknowledged that she had shown the children her bruising, and had told the children that their father had done it to her. Ms Meadis also acknowledged that she had told the children that their father was in prison. Ms Meadis advised that the children were shocked but believed that it helped them to understand what had happened.
It was also noted in the Department’s report:-
During the incident Mr Meadis allegedly told Ms Meadis that he wanted to talk about what Ms Meadis was “doing to him”; Ms Meadis clarified that this had to do with her leaving him and that there had been no property settlement and that Ms Meadis had challenged his application for a firearm licence.
This is disputed by the Father in his affidavit material. I will record here that property proceedings were issued by the Father on 18 May 2019. I was advised yesterday that the property has now resolved between the parties, as yesterday the matter was listed for a final hearing in relation to property issues. There has been an ongoing dispute between the parties regarding property issues, and there were certainly issues pertaining to various items of property that may or may not have been able to be kept by the Father, as I recall.
Mr Meadis was asked by the Department to provide detail about what occurred during the family violence incident, but consistent with his position in this Court, he stated that he was unable to provide details as the matter was subject to “criminal and family law court proceedings”, and he had been advised not to talk about it as it may compromise his defence, which is his right. The Department went onto say:-
Mr Meadis stated he is willing to discuss the involvement the children had during the incident.
When asked what led to the incident, Mr Meadis stated the joint psychologist had suggested they start to resolve issues, [and] Mr Meadis believed he had been invited with a note.
I referred to this note earlier in these reasons, and I note that, from the bar table at least, the Mother denied this. That will likely be a matter in dispute in these proceedings. The Department reported:-
Mr Meadis stated he had already completed a Men’s Behaviour Change program a few weeks prior to the incident. He stated this was court ordered and he attended approximate[ly] 13 of the 14 sessions. When asked as to why this had been court ordered Mr Meadis informed he believed it was part of the risk management for most magistrates around domestic violence. Mr Meadis was asked if he felt any remorse, and he informed that it would be an admission so he declined to comment. Mr Meadis then stated “I think it’s horrible, the memory of the boys seeing me leave the house, it’s really bad”.
When the Father was asked what the involvement of the children was in the family violence incident, it was reported:-
Mr Meadis stated that at the conclusion of the incident he was aware the boys were returning home, Ms Meadis went inside and he stated he was cleaning up out the front as Ms Meadis had spilt the contents of her bag. Mr Meadis informed the boys arrived home and heard their mum call for help and asked why she did that. Mr Meadis stated Y was at the back door and that he told them Mum was sick and not feeling well. He asked the boys to go around to Nana’s and that he would be around shortly. Mr Meadis informed the boys walked around to Nana’s place. Mr Meadis stated X arrived shortly after and he sent him around to Nana’s as well.
Mr Meadis was asked why he believes he is in prison, Mr Meadis responded with “strength of the allegations she has made”.
Mr Meadis stated he is concerned about the psychological abuse the children would suffer at the hands of Ms Meadis, Ms Meadis’ mother and sisters.
In light of my findings on the balance of probabilities at this interim stage that the incident occurred, Mr Meadis’ comment particularly regarding his concerns of psychological abuse shows, in my view, a breathtaking lack of insight on his part.
There is a proposal in this case, and it is with the consent of the Mother, that the Father have some telephone communication with the children facilitated by the Paternal Grandparents. I pause here to note that this should be undertaken with great care, and the Father should be very careful not to overly involve the children in what has happened. In my view, these children continue to be exposed to the consequent repercussions of family violence, and that also falls within the definition of family violence in section 4AB of the Act. There should be a real attempt not to continue to embroil them.
I expressed reservations yesterday that I thought that the Father would struggle with that and I still do. He involved the children with the breakdown of the marriage as I have set out in detail in my reasons of 15 November 2017, and I think that given his lack of insight, he will struggle not to continue to involve them in the conflict. However, on balance, I think the children should have some telephone communication with the Father, and he should try very hard not to continue to involve them save to merely to reassure the children that he is okay. Jail for children is probably a scary concept, and I think that the children are probably very worried about him notwithstanding what has happened to the Mother. I would hope that the telephone calls go at least some way to reassuring the children that the Father is okay, and that will be to their benefit.
The Mother has filed a report from her psychologist annexed to an affidavit by her filed on 13 November 2018. Not surprisingly, her psychologist sets out the ongoing impact of this incident on the Mother. The report is authored by Ms C, psychologist (“Ms C”), and it is dated 29 October 2018. Also annexed to the affidavit are the letters that were sent between the solicitors for the Mother and D Psychology & Counselling Services.
First of all, the Mother did present, as was suggested by Counsel for the Father, with a fairly high level of resilience. The Mother has been seeing the psychologist, at least at the time the report was written, on seven occasions between 27 August 2018 and 19 October 2018. This psychologist is a treating psychologist, and the purpose of the counselling was to provide an opportunity to the Mother “to recount her experiences in a safe setting where her emotional responses could be monitored and regulated”. It was also for the purpose of “clinical support due to the ongoing impact” of the incident on the Mother, and “strategies to assist with her self-regulation”.
It is entirely appropriate that the Mother has sought this sort of support. She presented to the psychologist as a high functioning, well-organised and capable woman. Due to current medications, the Mother did not display emotions one would typically expect from a person who has experienced an extended period of abuse as well as a significant traumatic event. Despite being able to verbalise her emotions, such as worry, fear, frustration and exasperation, she does not show her emotions, in that she is not tearful, distraught or disorganised in her speech.
Ms C then reported that in spite of the incongruence, as she described, the Mother reported behaviours that indicate trauma. Ms C report that the Mother’s sleep is interrupted, of poor quality, and with nightmares related to being hunted down. The Mother also reports physiological reactions and hypervigilance regarding safety, especially in Town A and surrounds, and that her work life balance is affected due to her reported symptomology, as well as high level of care she is investing in her children to assist in their recovery from the traumatic experience.
I am not going to read the entire report into these reasons, however I should note that the Mother has also seen a psychiatrist, Dr E (“Dr E”), who had written to Ms C. Dr E said that the Mother presented with a “very mild Adjustment Disorder after separating from her husband”. These comments occurred on 25 July 2017, so before the incident occurred.
In terms of Ms C’s opinion on the effect of the Mother in staying in Town A, she said this:-
The ongoing stress that Ms Meadis is experiencing combined with her high levels of vigilance will negatively impact on Ms Meadis’ ability to regulate her emotions which will affect mental health, physical health and overall well being [sic]. Ms Meadis’ ability to engage in a holistic life balance will be detrimentally affected and the ensuing lack of social withdrawal will further impact on her ability to limit the impact of stress on her and her family.
Ms C goes on to recount some medical consequences about long-term exposure to stress, and ultimately concluded that scientific evidence supports her opinion that remaining in Town A will be detrimental to the Mother’s mental and physical health and her social, emotional and physical wellbeing. It will also negatively impact her ability to support and parent her children, something that the Mother has made a concerted effort to focus on. Ms C concluded that the Mother should have ongoing counselling, but that she has shown great strength in managing her emotional reaction and is applying strategies discussed.
She records, and I agree:-
However, despite medication there is a finite limit to one’s strength reserves and the limit of emotional endurance. It would be unfortunate if someone of Ms Meadis’ capability and emotional strength is not allowed a safe place to live, work and support her children.
I may not be putting this fairly to Counsel for the Father, but it was suggested by him that essentially that because the Mother is coping well, that somehow that resilience should contraindicate a relocation result. I can do no more than refer to the decision in H&H [2005] FamCA 805 where Bryant CJ, Finn and Coleman JJ considered the decision of the trial judge in allowing a mother, who found residing in regional New South Wales to be isolating and distressing and entirely devoid of support, to relocate to Adelaide. They particularly considered questions surrounding the mother’s ability to cope should a relocation be denied. Their Honours referred to paragraph 54 of the first instance decision of Faulks J, who said as follows:-
The mother, essentially, had no choice and in circumstances where she was able to persist with adequately caring for the children when she was both distressed, isolated and potentially in a state of depression, (if not actually in one), it is to her credit, not to be used against her for the future. To suggest that in circumstances, which I accept must be severely distressing for her and, indeed, which were conceded, (and properly conceded by the father as being distressing and isolating for her), she should remain in those circumstances simply because there is no evidence that there has been a serious breakdown in her parenting ability so far is an ungenerous submission – even if one forensically available.
Their Honours concluded that this view was entirely open to the trial judge, and therefore he had not erred in his approach in assessing this particular matter in the case in this way. It was held that the trial judge had upheld previous authorities, and their Honours said at paragraph 41:-
…the submissions supporting grounds 6 and 7 suggest that there was some onus on the mother to establish that her parenting capacity had been impaired, before the Court could permit her to re-locate. This is akin to the requirement for the mother to provide “compelling reasons” for her relocation with the child, a concept rejected by the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852.
I therefore adopt that reasoning. Simply because the Mother has shown some level of resilience, that should not in some way impact detrimentally on her application to relocate.
Accordingly, I propose briefly, to examine the competing proposals. The proposal of the Father is to keep the Mother in Town A in a position where she is isolated, where she has felt under surveillance, and which has been exacerbated by this incident that took place on 24 July 2018.
Although the evidence in the earlier proceedings led me to a conclusion that the relocation was not warranted, this intervening event has profoundly affected the state of the Mother’s existence in Town A, and done so in a way which is perfectly explicable. It is entirely appropriate that she filed the psychological evidence, however it is equally apparent to me that an event of this magnitude could not fail to impact detrimentally on the Mother’s sense of security, safety and isolation and fear in her present environment. I accept that those feelings will impact on her parenting capacity, in circumstances where that parenting capacity is now tested as she has the children in her full time care. I accept that the children would remain in close proximity to their Paternal Grandparents in Town A, but their Father is no longer there. I accept, and this will be relevant also in relation to the Paternal Grandparents’ application, that the children have a very good relationship with the Paternal Grandparents, and that it is something that is of value of them. With the disintegration of the relationship with the Father, this has also occasioned the removal of very other important people in their lives, particularly the Paternal Grandparents, and the children will be feeling that loss enormously.
I accept that prior to the incident, the children had a very good, close and loving relationship with their Father. No challenge has been brought to bear on that. I accept that in relation to X and staying at Town A-12 School, it would be better for him to remain at that school. However, I also accept that if the Mother is required to live in that environment, then there will be detrimental effects on her capacity to parent both X and the other children given the circumstances; even on this interim basis.
I made some criticisms of the Mother and her level of insight and her conduct following the breakdown of the marriage, but equally there is now no other available person to care for these children. With whatever deficits in her capacity that there may be, she is a more than adequate parent, and she is the only person available to parent these children at this time on a primary basis.
The Mother’s proposal, in weighing the two proposals in the balance, also has the significant problem of how X will cope with the change, and I think he will struggle. It has the potential to impact on him in the medium to long-term. I have weighed that into my assessment, however on balance, the Mother needs to be supported. Her family is in the City J area. Objectively her need for support is explicable. I accept that she is in fear, and that this fear is real. I also accept that she would struggle to stay in Town A in the current circumstances. Accordingly, I have determined to allow the Mother to relocate and she can do so at her discretion, although she told me that she was proposing to wait until the end of the 2018 academic year, and I accept that that is what she will do. However, I do not propose to put that into the orders.
I can envision a circumstance, that there may need to be some introduction of the children to their new school and so forth. I think those sorts of things should be entirely within the Mother’s discretion in order to facilitate a smooth movement and transition of the children; the younger two into a new primary school and X, in particular, into his new school. It may be that it is recommended by their teachers, for instance, that they be transitioned into the school. It is for those reasons that I don’t propose to put that into the orders.
The relocation is supported by the Independent Children’s Lawyer and I concur. In these reasons, I have had regard to the best interests of the children as the paramount consideration, but also those other propositions that I have referred to.
I also accept that if the Mother was in Town A and the Father was released from prison and returned to the Paternal Grandparents’ home, that her fear would be significantly heightened. I cannot help but observe that the Father was unexpected on that day. Even if there is dispute about whether he was invited or not, there is certainly no suggestion that he was expected to be there at that particular time. I accept that he was there having regard to the admissions that he made to the Department of Health and Human Services, and the identity evidence which is proffered by the Mother. I accept that because of the way that it has happened, and the Mother’s previous experience of the Father, that if the Father was released from prison, and he may be, that she would be in fear of her life. There is no reason why she should be subjected to those sorts of burdens.
I accept that the Mother’s parenting capacity will improve if she goes to be with her family in the City J area. I also accept that she has a stable relationship with Mr F in that area, which will also provide her with succour and support.
On the present state of the evidence, there are certain challenges that are likely to be met by the Mother, including, it seems, having to give evidence at a committal hearing and perhaps a final criminal proceeding. This will cause her to have to live with the consequences of this incident for some considerable period of time. I accept that the Mother will comply with orders as she has done so in the past.
In all of the circumstances, weighing what is clearly a detrimental result for these children either way, the balance weighs in favour of the Mother’s relocation and that is what I am going to order.
In terms of the factors in section 60CC(2) of the Act, in my view, the meaningful relationship between the Father and the children has been partially severed, and I have addressed that previously in these reasons. Section 60CC(2A) says that I have to have regard and give greater weight to the consideration set out in section 60CC(2)(b) of the Act, being the need to protect the children from physical and psychological harm, from being exposed to abuse, neglect or family violence. I consider that these children have been exposed to family violence. The Act requires a consideration of children of being exposed to the aftermath of family violence, which is a particular consideration in this case. Giving greater weight to that latter consideration, this becomes a predominant issue in these proceedings. For the reasons I have set out, I regard the children at risk of harm, and a continuing risk of harm, and that the reason for that is entirely as a result of the Father’s own actions.
I pause to observe that even if there are deficits in the Mother’s parental capacity, those deficits would not impact on the outcome of this case. I would hope that the orders that I make alleviate the Mother’s concerns and anxieties regarding her own safety, and perhaps make the responsibilities for her to bear in the future a little easier.
I wish to comment on the Father’s way that he has put his case. I observe that, in my view, it externalises the focus. I understand the position that he is in with regard to the criminal proceedings, but I assess this case on the basis that he has chosen not to put matters before the Court, and that it is his own actions which have largely put his children in this position of detriment. Not only have they been deprived of an ongoing meaningful relationship with him, but they have also probably been traumatised by his actions and the associated repercussions of same. The external focus of the Father is, in my view, evidenced in his criticisms of the Mother, although not largely so. The Father very likely lacks insight, although this is something that needs to be determined at a later stage and at this point I do not take that matter any further.
I accept that the children, if asked, would want to see the Father, and indeed they said so to the Department, at least insofar as their statements record that they miss the Father and they would like their parents to be together. The Father, of course, has no capacity to care for the children at this stage.
The other additional factors set out in section 60CC(3) of the Act are not particularly relevant for the outcome of these proceedings. I suppose the attitude to responsibilities of parenthood pursuant to section 60CC(3)(i) should be incorporated. Otherwise, the predominant issue is issues of safety and issues of supporting the Mother in her care of the children, as because of the Father’s action, she has become central to their universe and she is the only person available to support them. The Mother needs to be supported in that role.
I turn now to the Paternal Grandparents’ case, which is a difficult case and is finely balanced. The Paternal Grandparents seek a result whereby they would have the children in their care every third weekend from Friday through to the Sunday. Counsel for the Paternal Grandparents, quite appropriately on their behalf, said that they would do essentially whatever it took to make sure that the children were transported into their care. As I have said, I have no doubt that this devastating event impacts on the Paternal Grandparents in a way which must be very distressing for them, and in a way which has deprived them of the company of their grandchildren with whom they had such an intimate involvement. There is no doubt in my mind the Paternal Grandparents love their grandchildren with all of their hearts, and I also have no doubt that the children are missing the Paternal Grandparents.
The Mother sought that the children see the Paternal Grandparents once every three weeks, but only during the day. She set out in her material, and in extraneous materials, her subjective view, that the Paternal Grandparents are supportive of the Father and not particularly supportive of her. There was some discussion yesterday about whether or not they had failed to make an inquiry as to her wellbeing following the incident in July 2018.
There is no material filed from the Paternal Grandmother. There was a suggestion that the Paternal Grandmother was involved in supporting the Father in the events of 24 July 2018. However, when I looked closely at the evidence, I do not think that the evidence supports that conclusion. It certainly supports a conclusion in terms of what the Mother was told by the Father, that the children were going to Nanna’s, but I do not think that I can draw from that, that the Paternal Grandmother had any idea about what the Father was going to do on that day. The furthest it can be taken, I expect, is that if the Father was imploding or his psychological or emotional state was deteriorating, that they might have had some notice of that. However, that is not an available finding for me on the evidence on this interim basis.
Therefore, I am going to assess the Paternal Grandparents’ case on the basis that they could not possibly have known what the Father was going to do on that day. Certainly, there is no evidence to suggest on an objective basis that they have done anything to support that, save and except that there is a suggestion that the Father went to their home afterwards. The lack of material by the Paternal Grandmother, at least, leaves me somewhat in the dark as to what they were told after that particular event. However, no issue was taken with the children being with their Paternal Grandparents by the Mother at the trial. I assess their case on the basis that they are not only appropriate to have an ongoing relationship with the children, but that their involvement in the children’s lives, because of the loss that would be occasioned to the children by not having a relationship with them, might in fact ameliorate some of the detrimental effects for the children. I have also weighed it in the context of allowing the relocation that the Mother will be supported further in an emotional and psychological sense of having the support of her partner and her wider family who are in the City J area.
I have also considered, in assessing the Paternal Grandparents’ application, that there is some force in what Counsel for the Paternal Grandparents put to me yesterday, in trying to normalise the children’s engagement with the Paternal Grandparents in staying overnight, because they will be returning to the home where they had lived for half of their time. I believe Counsel for the Paternal Grandparents said that there was a swimming pool there, as well as the sorts of activities that children do with parents and grandparents, such as sitting down for tea and waking up in the morning and the like.
I have also assessed the Paternal Grandparents’ capacity not to expose the children to issues surrounding the Father’s imprisonment and the incident of 24 July 2018. Again, I incorporate the comments and discussions that I had yesterday, that I think that it will be a very difficult thing to deal with, as the children will inevitably ask questions. I thought perhaps that if some professional assistance could be obtained, then that will likely benefit for everyone, although I do not propose to order it. I think that any one of us would struggle with what is going to be dealt with by the grandparents in terms of having to ask questions, and I accept that if it is not dealt with well, it may have an ongoing impact on the Mother as well. However, on balance, I have decided that there should be overnight time with the Paternal Grandparents.
In order to ameliorate some of the effects on the Mother, I think that it should be every third weekend from a particular time on Saturday morning through to a Sunday afternoon. I will leave it to Counsel to sort out the exact times. I do not think it should be more frequent than every third weekend. Save that during the long summer holidays, I think it should then be an additional night, because there are qualitative differences about school holidays and the like. It should be from Friday morning through to Sunday afternoon during the school holidays.
In terms of the Paternal Grandparents’ application, I am going to make an order that there be a Child Inclusive Conference that take place prior to the May Circuit, where I will bring the matter back. I am going to join the Paternal Grandmother to the proceedings. The Paternal Grandfather is the Applicant in these proceeding, however I am going to make them joint Applicants, and they can file an amended application. I will make that as the first order. Now having both Paternal Grandparents as applicants, they are going to be injuncted from bringing the children into physical or face-to-face contact with the Father, and discussing the proceedings.
I considered the issue of telephone time with the Father. On balance, it should take place on the weekend that they spend with the Paternal Grandparents, and the Father is to be injuncted in similar terms. The reason I am putting a time limit on it is because I am very conscious of the findings that I made about the Father’s presentation and demeanour as he is a particularly pedantic person.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 18 December 2018
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