Mills and Mills (No 2)

[2016] FamCA 592

FAMILY COURT OF AUSTRALIA

MILLS & MILLS (NO 2) [2016] FamCA 592

FAMILY LAW – CHILDREN – Application by father for a continuation of arrangements put in place by previous Court Orders preventing the child from coming into the unsupervised care of the maternal grandfather – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Mills

RESPONDENT: Ms Mills

FILE NUMBER: LNC 524 of 2008

DATE DELIVERED: 5 July 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mooney

SOLICITOR FOR THE APPLICANT: PWB Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lewinski

SOLICITOR FOR THE RESPONDENT: Butler McIntyre & Butler

Orders

1. The Court extends the provisions of the notation made on 18 May 2016 pending further direction or order.

2. These proceedings be listed for final hearing commencing 10.00am Monday 21 November, Tuesday 22 November and Wednesday 23 November 2016 at Hobart.

3. The applicant husband shall pay the hearing fee on or before 14 October 2016.

IT IS DIRECTED

1. The parties file and serve any further affidavit material upon which they rely on or before 14 October 2016.

2. The parties file and serve, two (2) working days prior to the commencement of the hearing a case outline document setting out:-

(a)the orders that that party seeks;

(b)a chronology in respect of the parties;

(c)the list of documents upon which that party relies; and

(d)an outline of the arguments in relation to the relevant issues having regard to the factors under s 60CC of the Family Law Act 1975 (Cth).

1. Should the parties wish to tender documents the parties shall have available a tender book with the documents contained in them, page numbered and indexed and provide four (4) copies, one for each of the parties legal representatives, one for the witness and a spare copy for the Court.

2. Within fourteen (14) days from the date of this order the husband file an amended application setting out precisely what parenting orders he seeks.

3. Leave be given to the parties to have the matter restored before me, on the giving of seven (7) days notice, for the purpose of considering any application for a family report.

4. The parties attend at mediation in relation to these issues.

5. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mills & Mills (No: 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 524 of 2008

Mr Mills

Applicant

And

Ms Mills

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings between Mr Mills (‘the father’) and Ms Mills (‘the mother’) in relation to parenting arrangements of their son, B who is aged 10.  The matter before me today is an application for interim orders by the father for a continuation of an arrangement which this Court briefly put in place in May of this year when the matter had come before it, but where there was limited time and resources available.  The father’s position is that there ought to at least be a continuation of the arrangements set out in the order of 18 May 2016 or an order preventing the child coming into the unsupervised care of his maternal grandfather.

2. The mother’s position is that the father is a troublemaker and asserts that he has pursued these matters unreasonably and that given all of the circumstances, the interim application, at least, ought to be dismissed. 

3. The father is aged 57 and asserts that he is a professional by occupation.  The mother is aged 49 and has the primary care of the child, B, who was born in 2006.  The parties married in 2001.  They separated in March 2007, at which time the child was aged about one.  The parties were unable to initially resolve the parenting arrangements and property arrangements until, it appears, orders were made by consent on the steps of the Court on 26 November 2009.  Each of the parties was represented at that time. 

4. What happened next is relatively clear and it is set out in the police records.   On 30 July 2010, about a year after the orders were made, there is a report by the father apparently that the child has swimming every Tuesday and after swimming the child has a shower.  The father says that on one occasion the child disclosed “He has big testicles and doodle and his grandfather said he has big testicles and doodle”.  It goes on to say that the child, when asked “Does the grandfather do anything else”, the child went coy, clammed up and did not make eye contact and changed the subject. 

5. The child, at that stage, would have been aged about 4.  Just after his fourth birthday, and presumably had not commenced full-time school.  The father, in his affidavit, sets out his version of the events, although the dates seem somewhat different, and the father says impliedly in July 2010:-[1]

   I had taken [the child] for a swim at … Swimming Centre, [Suburb F], and whilst showering at the centre after a swim, [the child] spoke about his genitals, stating “I’ve got a large penis and large testicles, haven’t I, daddy?”  They were his exact words.  When I asked who said this, he said “grandad, when he was holding (me or them, not understood clearly)’.  Whilst changing I asked twice if grandad had said anything else.  [The child] would not look at me and consistently changed the subject. 

   [1] Paragraph 47 of the father’s affidavit filed 10 December 2015.

6. He goes on to say:-[2]

   The following morning, being Wednesday, 28 July 2010, [the child] was still in my care.  [The child] showed me what he called a “train hug” in which he put his legs around my neck and my face in his groin.  When I asked him who taught him that, he replied “grandad”.  Later the same morning, he said “when we make deals we have to keep them, don’t we, daddy?”

   [2] Ibid at paragraph 50.

7. These concerns and other matters were the subject of reference to Child Protection Authorities and the Police, as generally set out in the applicant father’s counsel’s submissions filed either today or yesterday.  At that time, no further proceedings were taken by either party.  At that time, the mother asserts that she was not contacted by the father, but waited for the Child Protection Authorities to contact her and she gave a verbal undertaking at about that time not to leave the child in the unsupervised care of the maternal grandfather.  It seems not in issue that the mother took protective measures in relation to the child, including contacting appropriate counsellors and the like. 

8. This was not an undertaking as a Court would understand an undertaking to be.  It was an assurance by the mother, by which she clearly did not feel appropriately bound, and by which the father asserts that he felt she was bound.  What I make of that at a later date will be something for me to consider.  The father discloses some behavioural issues, although there was nothing arising at the school or any other matter, and there are no direct disclosures made by the child.  The Police or the police officer and the child protection officer formed an adverse view of the maternal grandfather and expressed that in the report.  I do not know details of their qualifications, their background or how they came to the conclusion, as they did on page 21 of 38, that the child may have had something to say, because the child did not say anything to them, but they came to an adverse conclusion nonetheless.

9. Nothing followed from that and, given the evidence, that is not surprising.  Nothing of significance has arisen since that time, apart from, it seems, the father discovering that the child, from time to time, may spend or does spend, at least on four occasions, unsupervised time with the maternal grandfather.  There was an issue in relation to a cousin which, given the remoteness, the nature and age of the children, is of no significance in terms of this determination.  The mother has now re-partnered and the mother asserts, as does the maternal grandfather, a number of factors which will need to be considered at the final hearing.  That is, that the father uses the allegations in a public sense to demean and damage the reputation of the maternal grandfather in a public place.  I do not know what to make of that, whether it is accurate or whether it is inaccurate. 

10. The mother says that the relationship with the father was a controlling and perhaps abusive relationship.  That is absolutely denied by the father.  Those are all facts which will need to be determined if this matters proceeds to a hearing.  It is the mother’s clear view that this is simply mischief being conducted by the father against her as part of a continuing almost guerrilla warfare.  The father’s position is that something had happened to the child.  He does not know what, and asserts that this child is at risk.  The parties have sensibly agreed to a mediation process.  As Mr Lewinski says, the evidence in this case could only be described as light, although evidence there is, and it is not simply evidence by the father.

11. I do not intend to go through all of the law and cases relating to how a Court undertakes this.  It is, in its essence, as I explained during the exchanges between counsel and bench, the need of a child to have a meaningful relationship with each of his or her parents and secondly, to protect a child from abuse.  In this case, the child protection authorities have expressed no concerns.  My task is to look at the nature of the allegations which, as I said, are light, the consequences, which are in this case, significant both ways.  It is significant if there is a risk of abuse. 

12. If there is not a risk of abuse, but the child believes that his maternal grandfather has abused him or believes that his father has falsely suggested something like that, either way the child is at risk from all of those outcomes.  The parties have sensibly and hopefully protected the child from this so far.  Given the evidence before me, and I might add somewhat reluctantly, I intend to extend the arrangement that was put in place on 18 May 2016 until the matter is listed for hearing.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 July 2016.

Associate:     

Date:              5 July 2016