Mitchell and Mitchell

[2017] FamCA 305

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL [2017] FamCA 305

FAMILY LAW – INTERIM PROCEEDINGS – Unacceptable risk – Injunction for personal protection

Family Law Act 1975 ss – 60B, 60CC, 60CC(2), 60CC(2)(a), 61DA(2)(b), 68B, 69ZX(3)

Deiter v Deiter [2011] FamCAFC 82

Goode v Goode (2006) FLC ¶93-286

APPLICANT: Mr Mitchell

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Ms Mitchell

Legal Aid NSW Albury

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

Orders

1. Until further order, Orders 4, 5, 6 and 7 of the Orders made by Judge Harman on 14 November 2014 that provided for the father Mr Mitchell to spend time with X, born … 2005, Y, born … 2007, and Z, born … 2010, are suspended.

2. Until further order, Order 2 of the Orders of Judge Burchardt of 27 September 2016 that provided for Mr Mitchell to spend time with, and to have telephone contact with, X Mitchell, born … 2005, Y, born … 2007, and Z, born … 2010, are suspended.

3. Orders 3, 4 and 5 of the Orders of Justice Gill of 4 May 2017 are discharged.

4. Mr Mitchell is restrained by injunction from communicating with X, born … 2005, Y, born … 2007, and Z, born … 2010. 

5. The following orders are made for the personal protection of the persons named in the orders.

6. Mr Mitchell is restrained by injunction from:

   (a)Approaching within 250 metres of Ms Mitchell, X, born … 2005, Y, born … 2007, and Z, born … 2010.

   (b)Approaching within 250 metres of or attending at H Street, C Town, Victoria.

   (c)Attending at the C Town Primary School, D Street, C Town, Victoria.

IT IS NOTED THAT

1. If:

   (a)an injunction is in force under s 68B for the personal protection of a person (the protected person); and

   (b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:

   i.causing, or threatening to cause, bodily harm to the protected person; or

   ii.harassing, molesting or stalking that person;

   the police officer may arrest the respondent without warrant.

IT IS FURTHER ORDERED THAT

1. The matter is listed for the giving of trial directions at 9:30am on 5 July 2017 and the parties are at liberty to attend on that day by telephone.

2. By close of business on 28 July 2017 each of the parties is to file and serve a list of the factual issues that they say will be necessary for the court to determine at final hearing, in order to decide what is in the children’s best interests.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 255 of 2013

Mr Mitchell

Applicant

And

Ms Mitchell

Respondent

REASONS FOR JUDGMENT

1. This is a case in which final orders were previously made by Judge Harman on 14 November 2014 being orders that provided for the mother to have sole parental responsibility for the three children, X, born in 2005, Y, born in 2007, and Z, born in 2010.  The orders provided for the three children to live with their mother but to spend alternate weekend time with their father.  Since the making of those orders, orders until further order were made by Judge Hartnett on 7 September 2016 that provided for the father to spend time with the children each Saturday from 10am until 6pm provided that his mother would be in substantial attendance during those periods, and also allowing him telephone time with the children at all reasonable times.  A number of restraints were made in relation to the parties’ conduct.  On 30 November 2016 Judge Hartnett transferred the proceedings to the Family Court of Australia in Canberra noting that, although final orders were made on 14 November 2014, the parties agree that there are changed circumstances. 

2. On 7 April 2017 the Single Expert prepared a report in relation to this matter which was released firstly to the mother and Independent Children’s Lawyer and then subsequently to the father.  The sequential release of the Single Expert’s report was necessitated by virtue of Exhibit C1, being a letter from the Single Expert identifying issues of risk both for the mother and the children on the report being released to the father. 

3. At the time of the interim hearing of the matter the father had been granted permission to access the Single Expert’s report, but had declined to do so.

4. Pending the final hearing of the matter each of the parties sought interim orders to be made. The mother seeks the suspension of orders that allow for the father to spend time with the children, injunctions pursuant to s 68B of the Family Law Act 1975 for the personal protection of the children and mother and a prohibition upon the father having any contact with the children.  This position was supported by the Independent Children’s Lawyer.

5. The father sought that the arrangements pursuant to the orders of Judge Harnett continue, which would allow him to have time with the children each Saturday, although that time would be supervised by his mother.  Those orders would also allow him to have telephone time with the children.

6. The mother relied upon the following material:

   a)Her Application in a Case, dated 27 March 2017;

   b)The affidavit by the mother, dated 20 March 2017;

   c)A further affidavit by the mother, dated 5 May 2017;

   d)An affidavit by Ms E, dated 10 August 2016;

   e)An affidavit of Mr F, dated 7 September 2016;

   f)An affidavit by Mr G, dated 2 November 2016;

   g)An affidavit by Dr B, dated 6 September 2016;

   h)The Single Expert report by Ms I, dated 7 April 2017; and

   i)Exhibit M2, a previous affidavit filed by Mr Mitchell on 4 November 2016 relating to his mother as a supervisor. 

7. The Independent Children’s Lawyer relied upon the following material:

   a)The Single Expert report by Ms I, dated 7 April 2017;

   b)Exhibit C1, being a letter from the Single Expert dated 7 April 2017 setting out her concerns for the safety of the mother and the children;

   c)Exhibit M1, the Intervention Order issued by the Magistrates Court at C Town on 15 February 2017 upon Mr Mitchell;

   d)Exhibit ICL1, correspondence under the hand of the Local MP dated 15 February 2017 regarding the father’s attendance at the electoral office;

   e)Exhibit ICL2, further documentation in relation to the father’s attendance at the office of the Local MP;

   f)Exhibit ICL3, a notebook entry by Senior Constable K in relation to the father’s attendance at the office of the Local MP, dated 6 January 2017;

   g)Exhibit ICL4, New South Wales police force records dated 10 January 2017 in relation to the attendance at Local MP’s office.

8. The father relied upon the following material:

   a)An affidavit by Mr Mitchell, sworn 5 May 2017;

   b)An affidavit by Ms J Mitchell, sworn 5 May 2017; and

   c)An affidavit by Mr L, sworn 5 May 2017.

9. The essential considerations in relation to these interim proceedings are the primary considerations set out at s 60CC of the Family Law Act 1975. That is, the question of the children enjoying the benefits of a meaningful relationship with their father by spending time with him as against questions of unacceptable risk of harm posed by the father to the children and to the mother. While other considerations come into play, pursuant to s 60CC, for example an assessment of the nature of the relationship between the father and the children, the particular characteristics of the children, the capacity of the parties to emotionally and physically care for the children and the operation of family violence orders, these considerations may be conveniently subsumed into the primary considerations for the purposes of these interim proceedings.

10. This is a matter for which there is already an order dealing with the allocation of parental responsibility, allocating sole parental responsibility to the mother pursuant to the orders of Judge Harman.  In these interim proceedings, in which there are highly contested matters as to risk posed to the children and where there are already orders dealing with the allocation of parental responsibility pursuant to the final orders of Judge Harman, it is inappropriate to apply the presumption of equal shared parental responsibility.  The presumption is also rendered inapplicable by virtue of the subject matter of the interim proceedings which disclose reasonable grounds to believe that a parent of the child has engaged in family violence.[1] 

    [1] Section 61DA(2)(b) Family Law Act 1975 re presumption of equal shared parental responsibility when making parenting orders.

The case presented for the mother

1. The mother asserted that there is a very high risk associated with the children spending time with the father.  This is a risk that she says is accentuated following the release of the Single Expert’s report. 

2. For the mother it was said that the judgment provided by Judge Harman in November 2014 gave a historical view of the issues with the father.  In his reasons for judgment Judge Harman found that the father had engaged in family violence towards the mother, it being established that there was

   coercive and controlling family violence through physical violence towards her, repeated derogatory taunts and denigration, restrictions upon relationships with family members… and the active steps taken by [Mr Mitchell] to enlist these children as his allies or co-conspirators in furthering his interests and meeting his needs.[2]

   [2] [344] Annexure AP2 of the mother’s affidavit Judgment Mitchell & Mitchell [2014] FCCA 2526

3. The judgment also included findings at [249] that the father has

   exposed the children to family violence and neglect and as a consequence the children have experienced psychological harm (including psychological harm of a serious nature such as to constitute a finding of abuse as made above).

4. This, however, was not suggested to have comprised any “physical or sexual abuse of the children”.[3]

   [3] [230] judgment of Judge Harman

5. In particular the mother relied upon the reasons of Judge Harman for the fact that they placed the father “on notice’ of the issues presented by his unwillingness or inability to protect the children from his strong emotional responses in respect of the mother. 

6. At [226] of the judgment his Honour says as follows:

   There is some real force to the submissions put on the mother’s behalf that time spent by the children with their father, whilst soever he remains insightless as to the impact of his behaviour upon the children and unable to appropriately self-regulate his emotional responses to and in the presence of the children … would have the potential to limit the mother’s relationship and involvement with the children. 

7. Even if the findings as to abuse made by Judge Harman were not to be relied upon (noting that pursuant to s 69ZX(3) I may adopt the findings of Judge Harman) the fact of the judgment identifying the difficulties with the father’s self-regulation in respect of the mother is an appropriate consideration.  That is, if such a matter was raised by Judge Harman, and further material is led on the interim proceedings that is indicative of a continuing inability to regulate his responses in respect of the mother then a conclusion (albeit tempered by the fact that these are interim proceedings) might more easily be drawn that there is an ongoing risk occasioned by that inability to regulate his responses. 

8. For the mother, principal reference was given to [227] to [230] of the Single Expert’s report.  This raises issues about the father’s mental health at [227] where in particular it was reported that he

   demonstrated an unguarded display of emotional reactivity, hostility, poor boundaries and the need for control, indicating that he has severe problems managing his emotions and impulses.

9. Further

   his account of his relationship with [Ms Mitchell] depicted such an intense and  long-lasting hatred that it is impossible to reconcile with his claim that he no longer feels anger towards her.

10. These were reported in the context of an assessment that the father suffers from “dysfunctional personality traits” [227] and a further assessment that he

    should be under the care of a psychiatrist for a considerable period for intervention and monitoring, before he could be deemed mentally stable enough to have any contact with the children.[4]

    [4] [230]

11. While the father denied in Court that he hates the mother (asserting that while he does not hate the mother, he hates her barrister, Ms Dart of counsel) even absent the report by the Single Expert, the conduct of the father at the Local MP’s office undermines such an assertion.  This matter will be referred to further. 

12. Further matters supportive of the notion that the father is highly hostile towards the mother are contained in her record of the reports made by the children to her. 

13. The mother also points to risk factors stemming from the father’s apparent use of synthetic cannabis.[5]  These however appear more closely related to issues concerning parenting capacity and neglect rather than issues of harm stemming from family violence.

    [5] [55] – [57] of the mother’s affidavit of 20 March 2017.

The case presented for the Independent Children’s Lawyer

1. The material tendered on behalf of the Independent Children’s Lawyer, particularly ICL1, ICL2 and ICL4, provide compelling evidence not only that the father threatened at the office of the Local MP to attend the mother’s home with a kitchen knife and to kill her, that is to “cut her fucking throat”, but that he also admitted to having done so to the police (exhibit ICL4).  These threats occurred on or about 5 January 2017. 

The case presented for the father

1. The material filed on behalf of the father did not deal with the material filed by the mother, nor that tendered by the Independent Children’s Lawyer.  The material asserted that his mother would be an appropriate supervisor and indicated that his time with the children had not been occurring in that they had not been provided to him.  There has been no contact between he and the children since September 2016.  His mother’s material indicated her awareness that there had been no time and asserted that there had been no attempt made for a changeover of the children.  The evidence of Mr L, the father’s manager, indicated that there was “nothing about his (the father’s) presentation, behaviour or performance (that had) given (him) cause for concern”. 

Discussion

1. I am acutely aware that Goode & Goode[6] urges caution in making factual assessments during interim proceedings.  At [68] of the judgment it was said

   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 making 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.[7]

   [6]Goode v Goode (2006) FLC ¶93-286, 81.

   [7] Goode v Goode (2006) FLC ¶93-286, 68.

2. That caution in making factual determinations does not detract from the primacy of the consideration, in determining what is in a child’s best interests even in interim proceedings, of a need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.[8]

   [8] Section 60CC(2) and 60CC(2A) Family Law Act 1975 (Cth).

3. In this case it is premature to make conclusive findings about the matters that have been raised by each of the parties. However, reflective of the prominence given the protection of children at s 60CC, the case of Deiter[9] reflects that, even in cases where at the interim stage it is not possible to make conclusive findings, the issues may render it imperative that an assessment of risk be made.  At [61] of that judgment it was said

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of a likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.[10]

   [9]Deiter v Deiter [2011] FamCAFC 82

   [10] Deiter v Deiter [2011] FamCAFC 82, 62.

4. In this case, there is cogent evidence of risk.  There is evidence to support the notion that the father harbours hatred against the mother, although this may be a contentious matter at trial. There is independent corroborative evidence of the threat being made at the Local MP’s office, being a threat to cut the mother’s throat and to kill her.  Admissions are recorded as having been made to the police about this matter. Even without such evidence of hatred, the circumstances and content of the threat made against the mother raise a risk of extreme family violence being perpetrated against the mother by the father.  Should that risk come to fruition, in the terms attributed to the husband, the results for the children would be catastrophic, whether or not they were direct witnesses to such an occurrence. 

5. Further, even if the children were not exposed to such an event occurring, but were merely exposed to further such threats being made by the father, such an exposure carries with it a risk of harm to the children as a result of being exposed to such things being said by their father about their mother. 

6. At present it is impossible to assess the degree of direct risk to the children of physical harm.  The father has proposed killing of the mother in the context of a child support dispute.  Given the concerns raised by the Single Expert about the inability of the father to self-regulate his emotional responses, and given his assertion of a willingness to engage in homicide in the context of the dispute, there is an unresolved issue of risk in relation to the children. 

7. There are then at least three classes of risk to which the children may be exposed if in contact with the father. 

   a)There is a risk of being exposed to the consequences should the father act on his threat to the mother;

   b)There is a risk of being exposed to a person who expresses extreme hatred and a desire to kill the mother and the effects that may be occasioned to the children of being exposed to such things being said; and

   c)An unresolved question of risk directly to the children by virtue of the father being willing to engage in homicide in the context of the family law dispute.

1. Accentuating these risks is the assessment by the Single Expert at page 56, in expressing concern for both the mother’s and children’s safety that

   My concern is that he may read what the children disclosed, and that the recommendations made will trigger such extreme anger that he is unable to manage his reactions.  He will, in all likelihood, react with hostility and blame, and act out swiftly and impulsively without regard for the consequences.  He is unlikely to take a self-reflective approach to the content of the report.

2. While it is premature to accurately assess the likelihood of any of these risks coming to fruition, the consequences of such are potentially extreme.  Further, while the likelihood of the risks coming to fruition cannot be assessed, there is sufficient evidential basis from which it is open for such a likelihood to be inferred at the final trial of the matter, depending, of course, on the testing of the evidence and the presentation of other evidence.

3. The nature of these risks mean that, pending the final hearing of the matter, and despite benefits that the children might receive from spending time with their father[11], it is not in their best interests to spend time with him. This is in spite of his assertion that the time could be supervised by his mother.  In his affidavit sworn 4 November 2016 the father deposed to reasons why his mother is not an appropriate supervisor.  Additionally the extreme nature of the threat made by the father at the Local MP’s office renders a close but frail family member unsuitable as a supervisor.

   [11] See for example [233] of the Single Expert’s report

4. This still leaves open the question of telephone time between the father and the children.  The Single Expert recommended against the father having such contact with the children.  Given the risk identified, of the impulsive expression of the father’s hatred toward the mother, or of the stating by him of an intention to harm the mother to the children, the risk of exposure to such outweighs the benefits the children may receive from telephone contact with the father.

5. Orders for the personal protection of the mother and children were made on 4 May 2017.  The matters discussed above in relation to risk make it appropriate to continue the injunctions for the personal protection of the mother and children in the same terms.  Given the risk issue in relation to the father communicating with the children, an injunction restraining the father from engaging in other communication with the children is appropriate for their welfare pending the final hearing of the matter.

6. Accordingly the orders for the personal protection made on 4 May 2017 will continue.  All orders providing for the father to spend time with the children will be suspended pending the further hearing of the matter.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 May 2017.

Associate: 

Date:  16 May 2017