Mullins and Mullins

[2017] FamCA 562

FAMILY COURT OF AUSTRALIA

MULLINS & MULLINS [2017] FamCA 562

FAMILY LAW – CHILDREN – Interim orders – Spend time with orders – Whether the father’s time with the children should be unsupervised – Where the father was previously required to attend upon a psychologist – Where the father has subsequently failed to do so – Where the presumption of shared parental responsibility does not apply due to family violence – Orders made for the father to spend time with the children in the substantial attendance of one of the supervisors.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 62G, 65DAA

APPLICANT: Mr Mullins

RESPONDENT: Ms Mullins

FILE NUMBER: ADC 4453 of 2013

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 13 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lindsay

SOLICITOR FOR THE APPLICANT: Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Parker

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

Orders

1. That B born … 2006, C born … 2008 and D born … 2010 (“the children”) live with the mother.

2. That the children spend time with the father from 12 noon to 7 pm on each alternate Sunday.

3. That the children’s time with the father shall be subject to Ms E, or Mr F and/or Ms G (“the supervisor”) being substantially present and in the general vicinity of the children when with the father, but without the need for the supervisor to be physically present with the children and the father at all times.

4. That if not already completed, within fourteen (14) days of this order each of the parties shall sign all documents necessary to enrol in the Suburb H Contact Service (“the service”) so that handover at the commencement and conclusion of time can occur at and from the said service.

5. That on any occasion when the service is not available or until the parties have been accepted into the service, handover shall occur at the Suburb H Police Station on the condition that handover is to be effected at the commencement and conclusion of time inside the police station in the absence of the father.

6. That the father is restrained and an injunction is granted restraining him from approaching or remaining in the vicinity of the Suburb H Police Station for fifteen (15) minutes prior to the commencement and conclusion of any handover.

7. That upon the father undertaking a minimum of four (4) counselling sessions with Mr J or such other appropriately qualified psychologist or counsellor and upon the provision of a report to the mother that advises that the father does not present as a physical or psychological risk to the children THEN the requirement for supervision as provided for in paragraph 3 herein is discharged.

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 Mullens & Mullens 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 ADELAIDE

FILE NUMBER: ADC 4453  of 2013

Mr Mullins

Applicant

And

Ms Mullins

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. By Application in a Case filed by Mr Mullins (“the father”) on 29 November 2016 and by Application in a Case filed by Ms Mullins (“the mother”) on 21 December 2016, the parties seek differing parenting orders in respect of B born in 2006, C born in 2008 and D born in 2010 (collectively “the children”).

2. By a consideration of orders made 5 December 2016 and 31 January 2017, the children live with the mother and spend time with the father as follows:-

   (a)Each alternate Sunday from 12 noon until 7 pm;

   (b)That the father’s time with the children shall be under the supervision of Ms E (“the supervisor”);

   (c)That until the parties are accepted into a children’s contact service handover shall occur at the Suburb H Police Station subject to the presence of the supervisor but in the absence of the father;

   (d)That the father is restrained from approaching or remaining in the vicinity of the Suburb H Police Station for 15 minutes prior to the commencement and conclusion of the handovers.

3. The orders sought by the father in his application do not now reflect the orders that he seeks.  In his Affidavit filed 20 April 2017 the father sets out that he has spent time with the children generally pursuant to the order of 5 December 2016 (“the order”) under the supervision of Ms E.  He contends that his time with the children has been without incident and he reports that the children are keen to extend their time with him.

4. He now seeks that his time with the children be unsupervised.

5. The mother strongly opposes any increase in time or the removal of the condition of supervision.  Whilst the orders sought in her application are to discharge the orders that provide for the children to spend time with the father, I am satisfied that the mother’s current position is to maintain the current orders pending trial.

6. The proceedings have been referred to the list of matters awaiting a trial allocation, but on present indication a final hearing is not likely to occur until the second half of 2018.

BACKGROUND

1. The parties were married in 2006 and following separation obtained a divorce order in June 2014.

2. The litigation between the parties has been ongoing and highly conflicted.  Final orders were made on 3 June 2015 that provided for the mother to have sole parental responsibility in respect of matters relating to the children’s care and welfare, that the children live with her and spend time with the father each alternate week from the conclusion of school on Thursday until the commencement of school on Monday.  Generous arrangements were put in place for the children to spend time with the father during school holiday times and on other special occasions.  The father enjoyed significant and substantial time with the children.

3. The mother filed initiating proceedings in August 2016 seeking to discharge the orders.  The basis for the mother’s application is contained in a Notice of Risk that speaks of the verbal abuse and threatening remarks and conduct by the father to the mother in the presence of the children.  There were also allegations made that the father had been physically abusive to the child C.

4. The issue of family violence and the extent to which the father was able to moderate his alleged aggressive presentation is central to the mother’s concerns namely, that unless supervised the children are at risk of exposure to the father’s threatening and coercive behaviour.

5. The relationship between the parties has completely broken down and by the terms of a family violence order they are not permitted to contact or communicate with each other save as may be necessary to give effect to parenting orders.

6. Both parties present as high functioning and intelligent parents.  The mother exhibits a high level of anxiety and is clearly distressed in any dealings with the father.  The father is mistrustful of the mother and considers that much of the mother’s presentation is an exaggeration and is part of a strategy by the mother to disrupt his once close relationship with the children for the further purpose of supporting the mother’s application to relocate the children to Europe.

7. It cannot be said that the mother’s allegations are entirely without substance.  Whilst it is not possible to make a finding as to the general allegations that each of the parties makes about the other and in particular their parenting of the children, it is agreed that there was an incident at the father’s home in the presence of a police officer during a handover process.  Following the incident, the father sent abusive and threatening text messages to the mother which were suggestive of an intention to cause harm to her and the children.

8. The mother has not been able to put aside the text messages and strongly believes that the father’s threats are consistent with her observations of his aggressive and coercive conduct during the course of the relationship.  The father acknowledges that the text messages were inappropriate and whilst not being able to resile from the language used, argues that the mother well knew that his words were borne of frustration and demonstrably devoid of intention to carry out the purported threats.

9. The issues were such that orders made on 15 November 2016 provided for the children to spend limited time with the father (3 hours) each Sunday and that the time was to be supervised by members of his extended family.  By orders made 5 December 2016 the duration and frequency did not alter, but there was a change in the supervisor to Ms E.

10. It is the orders of 31 January 2017 that extended the father’s time with the children from 12 noon until 7 pm.

CURRENT APPLICATION

1. The father seeks that his time with the children be unsupervised.  Whilst the mother’s application is to suspend the father’s time with the children, her position is to resist removal of the condition of supervision.

2. The proceedings were adjourned to enable the father to undertake counselling with the intention that not only would he gain some insight into the potentially damaging effect of his behaviour, the mother may also regain some confidence that the children would remain safe when in the father’s care.

3. The father has not been able to engage in the proposed counselling.

4. His counsel submitted that the counselling was to commence with a well-regarded therapist in June but it was cancelled by the therapist at short notice.

5. The mother believes that the father does not consider that counselling is required or of any benefit and accordingly he has paid lip service to his own counselling proposal.  There was nothing said by the father’s counsel which suggested that future counselling arrangements had been put in place.

PSYCHOLOGICAL REPORT

1. The father relies upon a psychological report prepared by Dr K being Annexure “B” to his Affidavit of 20 September 2016.  The focus of the report was to assess the circumstances in which the father “verbalised suicidal ideation via several SMS text messages to [the mother]…”.

2. The opinion of the psychologist was that the father suffered from a level of reactive depression and stress arising from the conflict with the mother.  It is also reported that the father had difficulties in his employment involving harassment and bullying and that the family finances were parlous.

3. The opinion of the psychologist was that the father was at a low risk of physical harm to himself and presented as a low risk either physically or psychologically to his children.

4. The recommendation was that the father engage with a psychologist for counselling and to ensure that ongoing stressors do not alter the father’s “low risk” status either in respect of himself or the children.

FAMILY REPORT

1. Following an order made pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), a family consultant published a report on 23 December 2016.

2. The observations of the family consultant were that the children were showing significant difficulties in being able to properly manage the conflict between their parents. 

3. The children described their time with their father as being dependent upon their father’s mood.  When he was in a good mood the children’s time was enjoyable, but the converse was the case if his mood was poor.  The observations of the children with the father were generally positive and whilst the family consultant was critical of the father’s parenting style being somewhat interventionist, there was clear affectionate interaction.  The observations of the family consultant and the children’s presentation was likely to have been affected by the significant period of time that the children had not seen their father.

4. The family consultant did not support the father’s proposals for ongoing care.  The conflict between the parties was such that shared parental responsibility may not be viable.

5. The family consultant considered that whilst the children should spend time with the father, it should be the subject of supervision until he has addressed mental health and emotional functioning difficulties.

PARENTING ISSUES

1. In the circumstances of this matter the presumption as set out in s 61DA of the Act does not apply. I consider that there are reasonable grounds to believe that the father has engaged in family violence. Accordingly, I am not obliged to consider the provisions of s 65DAA namely, whether it is in the best interests of the children that they spend equal time with each of the parents and whether it is reasonably practicable to do so, or whether the time should be substantial and significant or otherwise.

2. In determining what is in a child’s best interests I have considered the provisions of s 60CC both as to primary and additional considerations.

3. The focus is the consideration of the children spending time with their father in order to promote a meaningful relationship tempered by the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

4. Whilst the additional considerations have some application, in a general sense there is no suggestion that the children have expressed a strong negative view as to the extent of time that they spend with the father.  The father submits that the children have indicated to him that they would wish to spend more time and to return to the circumstances that existed in 2015 namely, where they spent significant and substantial time in his care.  The mother argues that the children have not expressed any wish to spend more time than is presently ordered.

5. It is not seriously argued by the mother that it is not in the children’s interests to have a meaningful relationship with their father.  Her concern is a matter of safety and her belief that the father presents as a potential risk.

6. The father’s time with the children has been the subject of supervision for many months.  The difficulty is that the counselling that was recommended both by the father’s psychologist and the family consultant has not been undertaken.

7. It is however informative that there has been no complaint or incident that has occurred and notwithstanding the ongoing mistrust by each of the parties it is likely that the more florid aspects of the conflict have settled.

8. At present the father does not seek to extend his time with the children, but rather to have the condition of supervision removed.

9. Given the father’s apparent intention to undertake counselling with the difficulty being the mechanics of the process, not any unwillingness on his part to engage in counselling, I propose to continue the effect of the order of 31 January 2017 but to ameliorate the restrictive nature of the supervision by increasing the nominated supervisors to include the paternal grandparents and to require the supervisor to be generally present in the vicinity of the father’s time with the children, but not to be required to be physically present at all times.

10. The father is then to engage in counselling with Mr J or such other similarly qualified health professional and upon the father completing a minimum of four counselling sessions and the provision of a report that in his opinion the father does not present as a physical or psychological risk to the children, the order for supervision is to be discharged.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 August 2017.

Associate: 

Date:  4 August 2017