MOLLOY & MOLLOY

[2013] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLLOY & MOLLOY [2013] FCCA 1834

Catchwords:

FAMILY LAW – Child aged 8 – previous consent orders made for father to spend time with child, including overnight and holiday time – orders made following release of family report – child described as having good relationship with father – mother alleges father has assaulted child – assessment of risk – meaningful relationship – protection from harm – best interests.

Applicant: MR MOLLOY

Respondent: MS MOLLOY

File Number: ADC 4588 of 2010

Judgment of: Judge Brown

Hearing date: 15 May 2013

Date of Last Submission: 15 May 2013

Delivered at: Adelaide

Delivered on: 15 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Molloy in person

Counsel for the Respondent: Mr Freer

Solicitors for the Respondent: Direct Lawyers

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be re-appointed to represent the interests of the child X born (omitted) 2004 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr R of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The order of 19 September 2011 pursuant to which the father spends time with X are suspended and in lieu thereof the father will spend time with the child as follows:

   (a)on Thursday, 16 May and Thursday, 23 May 2013 between 4:00pm and 6:00pm subject to the following conditions

   (i)the time takes place at the (omitted) McDonalds and to be subject to the supervision of Ms D; and

   (b)on each Saturday commencing 25 May 2013 between midday and 6pm with the child to be exchanged between the parties at the (omitted) McDonalds and the time to be supervised by Ms D.

2. Each party is restrained and an injunction issue restraining each of them from physically assaulting or injuring the child.

3. Further consideration of this matter is adjourned to 12 June 2013 at 4:00pm.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 4588 of 2010

MR MOLLOY

Applicant

And

MS MOLLOY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered ex tempore immediately following the interim hearing.  They have now been transcribed.  Grammatical errors have been corrected.

2. The proceedings concern interim arrangements for X born (omitted) 2004.  The parties to the case are X’s parents.

3. The parties have a reasonably lengthy history of proceedings in the court, which began on 6 December 2010.  At that stage, Ms Molloy, whom I will refer to as the mother in these reasons for judgment, sought an order that X live with her, and there be an injunction restraining Mr Molloy from coming within 100 metres of her. 

4. It is her position that Mr Molloy, to whom I will refer as the father, is a violent and abusive person.  It is also her case that she has long been fearful of Mr Molloy because of his violent behaviour towards her.

5. After the mother commenced the proceedings in 2010, it is clear that she moved with X to Tasmania.  This caused the father to bring an application requiring X to return to South Australia.  It was his position that, if X lived in Tasmania, he would not be able to see her regularly, and this would have resulted in the disruption of his close relationship with X.

6. It is also the father’s position that X has many relatives, particularly on her father’s side, who live in the Adelaide area.  At this early stage, Mr Molloy refuted suggestions that he had been both verbally and physically abusive towards Ms Molloy.  Ultimately, following an interim hearing, I determined that X should return to Adelaide, and an order to this effect was made on 20 April 2011.

7. Thereafter, the parties’ competing applications were fixed for final hearing in September, and it was ordered that a family report be prepared.  The family report was prepared by Ms C, and released to the parties in June of 2011. 

8. Ms C has a significant advantage over me in the proceedings in that she was able to see X interact directly with each of the parties.  At the time Ms C, who is a psychologist, came to write her family assessment, X was six years and 10 months old. 

9. Ms C observed X with Mr Molloy, and this is what she said:

   Mr Molloy and X jointly engaged in a range of activities and played together in a co-operative manner.  They chatted companionably with each other as they played.  X was particularly chatty during the session.  At one point X needed to go to the toilet.  She was very independent and insisted that she would go on her own.  She sang Twinkle, Twinkle, Little Star for Mr Molloy, with some help from him, and hummed as she drew with the pencils.  She talked to Mr Molloy about her reading, telling him the school librarian told her that even though her reading is so advanced, she still has to read little kids books because she wouldn’t understand books for older children.

   X mentioned that she would be spending the weekend with Mr Molloy, and told him he might be able to see some of her friends when he picked her up from school on Friday.  There was some good-natured teasing between them during the session, and Mr Molloy used the endearment sweetie several times when talking to her.  At the end of the session, X gave Mr Molloy a hug and a kiss.  For the entirety of the session, she appeared to be very relaxed and happy to be with Mr Molloy. 

10. Mr Molloy reported that he and Ms Molloy had successfully been able to make handover arrangements for this session.  In her evaluation, Ms C thought that X had loving and reciprocal relationships with both her parents. 

11. X seems to be a delightful little girl, who was described as being confident, outgoing and articulate.  Certainly, it seems to me Ms C’s view that she’s a bright little girl and makes friends easily.

12. Against the background of Ms Molloy moving X to Tasmania, Ms C opined as follows:

    It has been apparent to me that Ms Molloy has engaged in many behaviours that have directly disrupted X’s relationship with Mr Molloy.  These include making unilateral decisions about X, such as moving to Hobart to live, taking her away for Christmas 2009 for a month, on relocating to Adelaide, discontinuing X’s phone contact with Mr Molloy, and not responding to his messages about this, and going to great lengths, according to Mr Molloy, to keep X and him from seeing each other at the (omitted) social gathering.  In addition, X has been directly influenced by Ms Molloy, who has spoken to her about the court stuff, and led her to believe she will be living in Hobart, even though the court has made no judgment about this.

13. So, in April of 2011, which I concede is two years ago, it was the view of an independent expert that X had a close and loving relationship with her father.  It was also the expert’s view that Ms Molloy was not supportive of X having a proper level of relationship with her father. 

14. There was no adjudication of the central evidentiary issue in these proceedings in September of 2011.  That central evidentiary issue is the nature of the parties’ relationship with one another, and particularly whether Mr Molloy is a violent and abusive person, who has difficulty controlling his anger, and in effect, is liable to explode when placed under stress.

15. This adjudication did not occur because the parties agreed on a regime of orders.  That regime of orders was made following the release of Ms C’s report, and the appointment of an independent children’s lawyer for X. 

16. The parties agreed that they would have equal shared parental responsibility for X, who would live with her mother in Adelaide, and spend regular periods of time with her father on alternate weekends, and for blocks of time during school holidays.  Ms Molloy was represented when the orders were made.  In fact, her current counsel, Mr Freer appeared on her behalf. 

17. It is a significant thing for parents to have equal shared parental responsibility for their child.  If parents have such responsibility, they are required, as a consequence of the Family Law Act, to consult with one another about major long term decisions concerning their child.

18. Major long term issue is defined in the Family Law Act. It includes decisions about which school a child should attend, and changes in a child’s living arrangements which make it significantly more difficult for a child to spend time with a parent.

19. It is apparent to me that the parties’ relationship with one another is difficult.  The father commenced these proceedings on 26 March 2013.  They began with a contravention application.  Mr Molloy alleges that from 15 December 2012 onwards, Ms Molloy has failed to comply with the orders of 19 September 2011, and has not made X available to spend time with him.  Mr Molloy has filed an affidavit in support of his proceedings.  It is a brief document, which Mr Molloy prepared himself.

20. He says that on 15 December, he contacted the mother and asked to pick up X, but was told that he could not have her.  Later he arranged to speak with Ms Molloy, and he was told that due to an incident which X had reported, she would not be seeing her father until the police had investigated the matter. 

21. Mr Molloy has deposed that he did not know what the incident, to which Ms Molloy referred, was about.  Thereafter, he made inquiries with the police, the court here and the Legal Services Commission.  The impression I get from his affidavit is that he was at a loss to know what to do and felt disempowered and disadvantaged.

22. It is his case that, in these difficult circumstances, he went to where he thought X was going to school.  But when he went to her previous school at (omitted), he discovered that she had been enrolled in a different school.  Accordingly, it seems clear that Ms Molloy did not consult with Mr Molloy about a significant issue to do with X – namely where she was to go to school.  

23. Mr Molloy’s application was made returnable on 23 April 2013.  Precisely when Ms Molloy received it is unknown to me, but when the matter came into court for the first time, on 23 April 2013, Ms Molloy did not come to court, but Mr Freer did, and the proceedings were adjourned until today. 

24. It is only today that Mr Freer hands up an affidavit outlining from Ms Molloy’s point of view what she asserts has happened.  She deposes that on 2 December, she received a text from X saying that she had been struck on the face by her father, after Mr Molloy accused X of doing something.  Thereafter, she made contact with the police; she collected X at the (omitted) Shopping Centre; and she deposes that X had a bruise on the right-hand side of her face; as well as severe sunburn across her shoulders. 

25. She was wearing a new dress, apparently, with thin straps.  She describes X the following day as being teary and upset, and she was spoken to by the school counsellor.  The matter was reported to Families SA. 

26. Ms Molloy deposes that X had swelling and a bruise on her face.  It is further said that X has said to her that she does not want any further contact with her father.  The police have been involved, from the mother’s perspective, and photographs taken of the alleged injuries to X. 

27. It is clear that Ms Molloy has not been particularly proactive so far as the court orders are concerned.  By way of example, she has not come to court to seek the suspension of the orders in question.  The law indicates that a person may be released from an obligation to follow a family law order, in respect to a child, if he or she is concerned that such an action is necessary to protect the health, including the psychological health, of the child concerned, but such a person can only take that approach for a period of time which is reasonable in all the circumstances.  It is not an unlimited licence.

28. It is now over six months since the allegation of 2 December arose.  In that period, Ms Molloy has taken no steps to bring the matter back to the Court, and in addition she has made no proposal whatsoever for Mr Molloy to spend time with X. 

29. I do not think that it is an exaggeration to categorise her actions as being entirely reactive.  She has waited for Mr Molloy to bring matters to the Court, and she has done nothing whatsoever in respect of X’s relationship with her father.

30. Mr Molloy, who continues to act on his own behalf, received Ms Molloy’s affidavit this afternoon.  I adjourned the proceedings so he could read the affidavit.  He has not had an opportunity to formally respond to it. 

31. He told me from the bar table that there had been a contretemps between him and X, which had occurred whilst the two were shopping at a supermarket. 

32. He says that X took something from the shelf.  He was not wanting to purchase the item and returned it.  In doing so, it is his position that there was an accident whereby he and X came into contact with one another and X was bruised.

33. It is his case that the police have interviewed him and his partner, Ms D.  From the perspective of the police, there is nothing in the incident which indicates that the criminal law has been breached.  He has not heard anything further about it.  Mr Freer has told me – again, from the bar table – that the police are searching out video surveillance evidence to ascertain the nature of this incident.

34. Accordingly, the mother does not necessarily accept that the matter is concluded from the police’s perspective.  However, I have not been provided with any information regarding the attitude of Families SA, particularly whether they regard that there has been any substantiation of this alleged assault on X.

35. In addition, at this stage, I have not been provided with any photographs of the alleged injury.  I have not been provided with a medical report in respect of the alleged injury.  Finally, I have not been provided with any statement from the school counsellor concerned, regarding what X did or did not say to the counsellor concerned.

36. Accordingly, at this stage, the mother’s allegation about Mr Molloy is somewhat inchoate.  Ms Molloy cannot know from her own knowledge what happened between X and her father.  It seems likely to be the case that she will give credence to any suggestion that Mr Molloy has behaved violently or inappropriately.

37. At this stage, given the allegations regarding X, it seems necessary that she once again be independently represented in these proceedings.  I will make an order to this effect. 

38. One of the reasons for such representation is so that an independent person may gather evidence from the various organisations that may hold information about X, such as her school, Families SA, and the police, and that evidence can be gathered and presented to the court. 

39. It also may be necessary for X’s views to be independently canvassed.  When I say independently, what I mean is away from the influence of both of her parents.  In the past, an expert, Ms C, thought that there was evidence to indicate that Ms Molloy was attempting to influence X in the expression of her views. 

40. The mother has not as yet filed a formal response to these proceedings.  Mr Freer told me that what his client proposed was that Mr Molloy could have some contact with X on the telephone, and that thereafter there could be some professionally supervised time between the two at a children’s contact centre.

41. I am concerned at that proposal, because for a period of around six months, X’s relationship with her father has been interrupted.  There is likely to be a significant waiting time of around eight weeks, perhaps longer, before the parties can be accepted into a children’s contact centre. 

42. That will mean it will be around eight months until Mr Molloy interacts face-to-face with X, once again.  This is a situation in marked contrast to that described by Ms C, of a bright, cheery little girl, who was able to play happily with her dad, sing a nursery rhyme to him and give him a goodbye kiss, as a result of having a good relationship with him because she had seen him regularly.

43. At this stage, I am not in a position to definitively rule out the assertion made that Mr Molloy assaulted X and did her a significant injury.  In these proceedings, which are limited in nature, I have to make some sort of assessment of the risk arising for X of both spending time with her father as well as not spending time with her father. 

44. The assessment of this risk must be made within the parameters of the Family Law Act, as it pertains to children.  Whatever order I make, I must be satisfied that it is in X’s best interests.

45. In determining what is likely to be in X’s best interests, I have to consider a long list of matters in the Family Law Act.  Those matters are placed in two different categories.  Firstly, what are called primary considerations, and secondly, what are called additional considerations.

46. There are two primary considerations.  Firstly, I have to consider the benefit to X of having a meaningful relationship with not one, but both of her parents, and secondly, I have to consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

47. As a result of recent amendments to the Family Law Act, I am required to give pre-eminence to the need to protect a child from physical or psychological harm, as a result of being subjected to abuse, neglect or family violence. If X has been assaulted by her father that is clearly family violence.

48. The additional considerations deal with such things as the nature of the relationship the child has with each of his or her parents, and the capacity of the parents to provide for the needs of the child concerned.

49. In terms of the additional considerations, it would seem clear from what Ms C has said that X has a – had, at least, a close and loving relationship with her father.  Mr Molloy has re-partnered. 

50. His current partner is Ms D.  They have been involved with one another for about two years and I am told that X knows Ms D as well, and the two have spent time together over a period of 12 months or so.

51. In this case, the primary consideration speaks of the need to protect a child from coming to physical or psychological harm.  At this stage, as I say, I am not in a position to rule out definitively whether or not X has been assaulted, but what I am required to do is put in place reasonable safeguards to protect her from coming to harm. 

52. I also cannot overlook the benefits X is likely to have from having a proper level of relationship with her father, particularly in the context of what was described by Ms C.

53. At the moment, I am concerned that there is a very real risk that X will lose her relationship with her father, and that this is a significant danger in this case.  In my view, it would not be congruent with X’s best interest to wait a significant period of time until the parties can have a place at a supervised contact centre. 

54. Something has to be done more quickly to re-engage father and daughter.  But having said that, given the period of time that has elapsed and given the obvious hostility between the parties, it is likely to be difficult to immediately return to the previous care arrangements for X. 

55. In my view, pending the appointment of an independent children’s lawyer, there has to be a gradual re-introduction between father and child.  In addition, there have to be some safeguards put in place to assuage Ms Molloy’s concerns.  She is particularly concerned about the prospect of X spending overnight time with her father. 

1. So for those reasons, what I propose is there be two brief engagements between father and daughter at a neutral location, likely to be appealing to a child of X’s age.

2. Thereafter there be a longer period, on weekends, before the matter returns to court with the appointment of an independent children’s lawyer.  Thereafter I will adjourn the matter to 12 June 2013 at 4:00pm.

3. So the rationale is that there are two evening meals, or afternoon/late-afternoon meals between father and daughter.  X can go on the cub camp, and then she can spend Saturday afternoons until the matter comes back to court on 12 June. 

4. So I would anticipate that that is an arrangement with which X will readily be able to cope.  I can see that it is probably not as much time as Mr Molloy would want.  But given that he has not seen X for a lengthy period of time, not due to any fault to any fault or remission on his part, but nonetheless that difficulty behoves a cautious approach.

5. I will also make an injunction that each party be restrained and an injunction issue restraining them from physically assaulting or injuring the child.  That is not intended to indicate any finding of fault or omission by either parent.

6. So for those reasons, I will make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Date:     15 May 2013