MUNROE & MUNROE
[2019] FamCA 396
•27 June 2019
FAMILY COURT OF AUSTRALIA
| MUNROE & MUNROE | [2019] FamCA 396 |
| FAMILY LAW – CHILDREN – Interim – With whom a child lives and spends time – Where the father asserts the mother’s partner is a risk to the children – Where the children have a significant and meaningful relationship with both of their parents –The bests interests of the children are paramount. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-643 Goode & Goode [2006] FamCAFC 1346 Marvel v Marvel [2010] FamCAFC 101 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Munroe |
| RESPONDENT: | Mr Munroe |
| FILE NUMBER: | SYC | 2826 | of | 2015 |
| DATE DELIVERED: | 27 June 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 13 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Reilly |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
UNTIL FURTHER ORDER
That order 13 of orders made 8 September 2015 be suspended.
That Y born 2011 shall live with the parties in an equal shared parenting regime as follows:
(a)Commencing 5 July 2019 with the father from the conclusion of school until the commencement of school the following Friday and each alternate Friday thereafter; and
(b)Commencing Friday 28 June 2019 with the mother from the commencement of school until the commencement of school the following Friday and each alternate Friday thereafter.
That Z born 2007 shall live with the father and spend time with the mother as follows:
(a)Commencing Friday 28 June 2019 from the conclusion of school until the commencement of school the following Monday and each alternate Friday thereafter; and
(b)From the conclusion of school on Thursday 4 July 2019 to the commencement of school on the following day
That the mother is restrained and an injunction is granted restraining her from allowing Z to be left alone in the presence of Mr B other than in the circumstances where the mother shall remain in the near proximity of Z and Mr B.
That the parties be at liberty to relist the matter at short notice following the distribution of the anticipated family report to be prepared by Mr C.
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 Munroe &Munroe 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: SYC 2826 of 2015
| Ms Munroe |
Applicant
And
| Mr Munroe |
Respondent
REASONS FOR JUDGMENT
Introduction
By Initiating Application filed 20 May 2019 Mr Munroe (“the father”) seeks to set aside parenting orders made by consent on 8 September 2015 which resolved the ongoing parenting arrangements for Z born in 2007 and Y born in 2011 (collectively “the children”).
Ms Munroe (“the mother”) opposes the final orders sought by the father and seeks that the children live with the mother and spend time with the father as may be recommended by a single expert appointed to assist the court in the proceedings.
The father sought detailed interim orders that the children live with him and spend each alternate weekend and half school holidays with the mother conditional on the following:
i)That she does not consume alcohol for a period of 12 hours prior to the children coming into her care and at any time that they are in her care;
ii)That the children are not left alone in the care of Mr B (the mother’s partner) and that in any event he does not remain in any premises in which the children spend time with the mother; and
iii)That the mother shall submit to urine analysis, a liver function test and a carbohydrate deficient transferrin test for the purpose of determining the extent of the mother’s alcohol use considered by the father to be excessive and with the potential to place the children at risk.
The mother filed an Application in a Case on 11 June 2019 seeking interim orders that the children live with her pending further order and that a recovery order be made to enable the children’s whereabouts to be located and following their recovery to be delivered up to her care. The mother sought that her application be listed urgently and on an ex parte basis in circumstances where:
i)She had not seen the children since 24 May 2019 and was not aware of their whereabouts;
ii)That she was unable to contact the children since 29 May 2019 and they had not made contact with her;
iii)That following a report to police, no information was provided as to the children’s whereabouts; and in particular
iv)That Z had not attended school since 30 May 2019 and Y since 31 May 2019.
The mother acknowledges that she received a proposal from the father’s solicitors that upon her entering into an undertaking that she will refrain from using alcohol during any period that the children spend time with her, and that in any event Mr B will not come into contact with the children, whilst the children would live with the father he would allow them to spend time with the mother each alternate weekend.
It appears that the father may have taken steps to remove the children from any circumstance or situation where they may come into contact with the mother.
Whilst it was not clear what the father’s future intentions were, and in particular how long he considered that the children should not attend school or have any communication with the mother, agreement was reached by consent and pending further order that the children would spend time with the mother from the conclusion of school on Friday 14 June 2019 until 12 noon on Sunday 16 June 2019 conditional on the mother not consuming alcohol whilst the children were in her care and that Mr B not come into contact with the children.
The parties also agreed that they would jointly instruct a single expert witness to prepare to undertake an assessment of the family dynamics and that the family consultant prepare a report that would consider the primary and additional factors as set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The parties have agreed upon Mr C to undertake the assessment and would expect that following the assessment process and attendant observations of interaction on or about 10 September 2019 Mr C would prepare a report which should be available by the end of September 2019.
It is reasonable to assume that the distribution of the anticipated family report would invite the potential for a reconsideration of the interim parenting arrangements. Accordingly the focus of the interim hearing is to put in place interim parenting arrangements for the next three to four months.
The application for consent orders filed 20 August 2015 disclosed that the father had been the subject of an apprehended domestic violence order (“ADVO”) made 28 July 2015 which detailed the mother as a protected person. The consent application also reflects that an ADVO was the subject of application by police directed to the father for the protection of Z. The consent order provides the following relevant notations:
38.1Without admissions, the father undertakes to take part in a course of anger management counselling and to complete such course and to provide evidence to the mother of his completion of such course within 10 weeks of the date of these orders and the father’s participation in the anger management counselling is at the request of the mother.
38.2 …
38.3The mother holds no fears for the safety of the children and does not think that the children are exposed to any form of risk whilst the children are in the care of the father.
As discussed, the consent orders put in place the parenting of the children on an equal time basis which reflected the parties’ arrangements since 2014.
Father’s application
On 13 May 2019 the father requested that the mother sign an undertaking for the children to remain living with him and spend time with the mother on alternate weekends subject to Mr B not being present and the mother abstaining from consuming alcohol for a period of 12 hours prior to the children coming into her care and for the duration of their time with her.
The father’s concerns are apparently based on the following matters:
·That the mother has convictions for drink driving offences;
·That her use and abuse of alcohol adversely impacts on the children;
·That the mother has made an allegation that Z has sexually assaulted her and that in any event she is not able to control him; and
·That Mr B assaulted Z who is now a protected person on an ADVO filed on 26 April 2019.
On 14 May 2019 the father travelled to Country D to support his wife in respect of an application that her daughter be able to travel to Australia.
The father understood that the mother intended to travel to Country F but did not know the dates of her travel.
Whilst away the children were supervised by the maternal grandmother and a nanny.
The mother and Mr B returned to Australia on or about 21 or 22 May 2019. The father returned to Australia on 30 May 2019 and he alleges that Z complained to him that he felt awkward in the mother’s home in the presence of Mr B and that he felt “scared and uncomfortable”.
The conversation with Z appears to be the catalyst for the father’s decision to keep the children from school and to cut off any communication between the children and the mother pending his application being heard.
The father filed a Notice of Child Abuse, Family Violence or Risk of Family Violence with his Initiating Application. The alleged risk of abuse refers to the mother’s contention that Z sexually assaulted her and consequent upon the children’s complaints a complaint that Mr B physically manhandled them, the father alleges that on 24 April 2019 Mr B assaulted Z which resulted in an ADVO prohibiting him from:
a)Assaulting or threatening Z;
b)Stalking harassing or intimidating Z;
c)Intentionally or recklessly destroying or damaging property that belongs to or is in the possession of Z.
The mother seeks that the interim orders sought by the father in his Initiating Application filed 20 May 2019 be dismissed.
The mother’s Response was supported by a Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 7 June 2019 which alleged that:
·During the marriage the mother and the children were subjected to physical and verbal abuse by the father;
·In 2015 Z presented with a fractured arm which he claimed was the result of the father hitting him;
·That the children complained of the father’s excessive discipline and their fear of his conduct;
·That the children were questioned by the father as to the mother’s relationship with Mr B;
·That in April 2019 the father encouraged Z to climb out of his window and run to the street where the father was waiting;
·That the father withheld the children from school and did not disclose their whereabouts to the mother.
The mother confirms that she has re-partnered with Mr B and has lived with him since September 2018. She acknowledges that the children have at times been unhappy with the “new dynamic”. The mother’s concerns were heightened by the absence of any information from the father as to the whereabouts of the children whilst in his care and her belief that the father’s conduct was deliberate in an attempt to isolate the children from her. She considers that there is a real risk of irreparable damage to her relationship with the children.
Her assertion that during the relationship the father had perpetrated family violence by being controlling and manipulative, verbally and physically abusive, and financially controlling fuels her belief that the father has unresolved anger management issues and possibly an adverse mental health presentation.
She considers that the children have been manipulated to display oppositional behaviour to both her and Mr B which then raises issues of discipline.
The mother acknowledges that the consent orders reflect her belief that the children were not at risk in the father’s care notwithstanding her previous allegations of family violence.
To some extent the time that has passed since the making of the orders is more likely to cause the court to focus on the current circumstances rather than those that form the historical narrative.
The mother’s concerns were also raised by correspondence received by the father’s step-mother on 31 May 2019 suggesting that the father had expressed to her that he wants full custody and continues to assert the mother is not fit to parent the children, that she has a drink and drug habit.
An escalation of the tension between the parties is apparent from the content of a letter received by Mr B on 31 May 2019 calling him a “fucking cunt” and that he “deserves everything that is coming to him”.
The mother is particularly concerned as to the circumstances surrounding Z being encouraged by the father to climb out of his window and meet the father on the corner. The apparent basis for Z’s departure from the mother’s home was that Mr B had thrown him around a room, had hurt him and he couldn’t leave because the door had been locked.
The parties have a very different version of Z’s reasons for leaving the mother’s home. The father contends that the child was frightened of Mr B and needed to escape. He did so without encouragement from the father but it is acknowledged that the father assisted his purported escape. The mother contends that Z told her he did not want to leave but did so at the instigation of the father and arising out of his fear that he did not want to get in trouble.
The mother considers that both children have reported to her that they are encouraged to make adverse comment and remark about the mother and Mr B and that the father records their purported complaints.
The mother does not concede that there are any issues in respect of alcohol abuse and other than anxiety she has not been diagnosed with any mental health issues, nor does she seek or have an ongoing relationship with a treating psychologist or psychiatrist.
Mr B
It seems that the gravamen of the father’s opposition to the children remaining in the mother’s household pursuant to the current orders is the presence of Mr B.
The mother records that Mr B has not been convicted of any criminal or family violence offences. The children were introduced to him in February 2018 and in September 2018 the mother and Mr B jointly leased their current premises.
Mr B assists the mother financially with the family’s living expenses.
The mother acknowledges that whilst at times Mr B has a good relationship with the children, at [59] she concedes:
However, [Z] can be defiant, and [Z] does not respond well to being told to behave respectfully. When [Mr B] or I try to have [Z] behave appropriately, he says to me “Dad says I don’t have to do what you say”.
On 26 April 2019 the mother awoke to find that Z had not slept in his bed. She called the police and was later advised that the father would be taking Z to report an assault upon him by Mr B. A provisional ADVO was issued on 26 April 2019 alleging that whilst the children were at Mr B’s workplace, he grabbed Z by the right shoulder and squeezed firmly, he led Z to a chair and required him to sit in the chair by swinging him around by the shirt. It is asserted that Z felt pain to his right shoulder but he did not sustain any injuries.
The mother received a letter from Z dated 26 April 2019. The contents are relevant, reproduced at [70] of the mother’s affidavit, and it is necessary that they be repeated:
“Dear mum I love you very much and i’m sorry for escaping home, but I was very worried about being safe with [Mr B] in the house. you were not able to keep me safe and was scared because the day before [Mr B] swung me around by my shirt and threw me into a chair at his office he also grabbed me and hurt me. [Mr B] also took my computers and phone away from me. and I had know way of calling Dad. Mum this is not the first time [Mr B] has grabbed me and [Y] and hurt us. I need to feel safe in your house with you and [Y], and [Mr B] but I’m worried and scared of him. I love you very much and want to come home but you need to protect me. love [Z] xxx.”
The mother was upset at the contents of the letter but did not discount her belief that the father was the instigator and that the grammar and content of the letter was not likely to have been authored by Z.
There was also some uncertainty by the police as to whether it was written by Z or the father.
Mr B is subject to a provisional ADVO listing Z as a protected person. Mr B is not to molest, harass or threaten Z, but the ADVO does not prohibit the children coming into contact with Mr B.
The mother denies that she has ever observed any aggressive or adverse conduct towards the children by Mr B and in any event would not allow that to occur.
Evidence relating to Mr B
Mr B relies on his affidavit filed 11 June 2019.
He confirms that whilst born in Country G, he has lived in Australia since March 2016 and is employed by a Sydney based company.
He and the mother met in early 2018 and commence their cohabitation later that year. He provides some financial assistance and he and the mother share equally in the rent for the Suburb H property.
Mr B acknowledges that from February 2019 there had been a marked change in the children’s’ behaviour and attitude towards him. The children appear to him to be oppositional and defiant and normal courtesies are often ignored.
Mr B agrees that on 24 April 2019 the children had a technology free day. He spoke to the father and advised that the children’s technology was taken away as a punishment for Z being disrespectful to the mother.
The father apparently objected to the conditions of discipline and when Mr B did not immediately agree that the children’s phones would be returned within the next 24 hours, he contends that the father then threatened him.
Mr B acknowledges that he is subject to the ADVO and relies upon his statement given at the time that denies that there was any basis for Z’s allegations, but does agree that his oppositional behaviour has been escalating.
Mr B rejects any assertion that he poses a risk to the children.
Interim parenting
In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the question of making findings on contested evidence and as highlighted by the following remarks, a cautious approach is desirable:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121. …
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
In Deiter & Deiter [2011] FamCAFC 82 the court considered the situation where the contested facts related to an assessment of risk and the following appears at [61]:
…Risk assessment comprises two elements – the first requires prediction of the 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.
In Eaby & Speelman (2015) FLC 93-643 the Full Court further considered the issue at [18]:
… 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.
The law
The relevant principles in relation to parenting and interim proceedings are well settled. In Goode & Goode [2006] FamCAFC 1346 the Full Court considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461.
Section 60B of the Act outlines the principles underlying Part VII of the Act which provides for the best interests of the child to be met by ensuring that children have the benefit of both of their parents having a meaningful relationship in their lives and protecting children from physical or psychological harm, abuse, neglect or family violence.
Section 60CA provides that the court is to have regard to the best interests of the child as a paramount consideration and that is to be determined by consideration of the primary and additional considerations in s 60CC.
Section 61DA provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility other than in circumstances of abuse or family violence, where the court considers that in interim proceedings it would not be appropriate for the presumption to apply, or if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
If the presumption in s 61DA is to apply, and the court makes orders for equal shared parental responsibility, s 65DAA operates to require the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Best interests
The interim orders sought by the father are silent as to parental responsibility, notwithstanding that the father seeks sole parental responsibility in his final orders. The mother does not seek to disturb the provisions of the consent order as to parental responsibility. It is conceded by the father that the best interests of the children are served by them maintaining a meaningful relationship with the mother. His concern arises from the presence of Mr B and an assertion that the mother’s use of alcohol presents a significant risk. The orders sought by the father would also require Mr B to be removed from the home that he shares with the mother for any period that the children spend time with her.
The father places significant reliance on the letter allegedly authored by Z on 26 April 2019. The mother strongly believes that the letter was written by the father and does not truly reflect Z’s position. Mr B denies that he in any way assaulted the child or that there is any basis for concern.
In spite of the provenance of the letter of 26 April 2019, at the very least it underpins the children’s desire to maintain a strong relationship with their mother.
Irrespective of whether the evidence supports the promotion by the father that Mr B presents as a risk to the children, or the mother’s position that the father has directly manipulated the current conflict and impasse, the father’s conduct in removing the children from school and ensuring that they have no contact with the mother either physically or by way of direct communication with her was not in their best interests and was certainly adverse to their clear expressed need to have a strong relationship with both of their parents.
The children have been placed in an intolerable position of having to choose between their parents and have become the focus of a conflict not of their making.
The parties have recognised that a consequence of their long simmering conflict has been a substantial escalation in Z’s oppositional and defiant behaviour in his mother’s home.
The parties have jointly instructed Ms J (psychologist) to assist each of them and the children to better navigate a way forward.
In her letter to the father dated 11 April 2018 Ms J considers that “Z’s unsettled and extreme behaviour is likely to be due to the unresolved nature of this experience”.
Whilst being aware of the father’s concerns, as to the deficiencies that he considered were evident in the parenting by Mr B and the allegation that the mother’s parenting was adversely affected by her alcohol consumption, Ms J considered that given her involvement, she was confident significant progress could be made.
The father’s response was pessimistic to the optimism Ms J expressed, however, to their credit, the parties continued with Ms J and in her initial recommendations dated 17 October 2018 she considered that for the last term of the 2018 academic year, Z should stay with the father and spend time with the mother on alternate weekends, Friday through to Monday, with a mid-week dinner or activity in the intervening week, whereas Y would continue the week about arrangement.
Concerns in respect of the mother’s parenting and issues arising from the involvement of Mr B would be the subject of further counselling with Ms J.
Her recommendations were made in response to the following identified issues:
1. The frequency of challenging behaviour that Z is demonstrating with [the mother and Mr B] and the way in which the behaviour is being managed.
2. The priority is for the children to be safe, and to prevent escalations in which Z flees to his father / or his father is called upon to intervene.
3. Recognition that this behaviour is associated with the many changes both children are experiencing … mother moving home and sharing with partner, father getting engaged and the expectation that he will also be living with his partner.
4.Report from school that since Z has been living predominantly with his father that Z is more settled and engaged at school.
5.The preservation of Z’s relationship with his mother.
6. To reduce the conflict that Y is exposed to.
Following the further therapeutic intervention of Ms J as at 12 April 2019 she reported to the parties that:
After discussing the last term with each of you and Z, it appears that Z’s behaviour, academic results, and relationships have improved with the existing program. You are both aware of Y’s academic, behavioural, and social difficulties at school. You and school have already started to address these needs. I have included some recommendations for Y also.
Ms J considered that her earlier recommendations should be extended to the end of term 2 in 2019 with Y to continue with her extracurricular activities and her social and emotional needs to be monitored by her teachers but also the parties.
The evidence as presented by the father does not support a finding that the mother’s parenting is compromised by her excess use or abuse of alcohol.
The terms of the ADVO that lists Z as a protected person does not prevent the presence of Mr B but rather prohibits him from engaging in certain conduct. The ADVO the subject of challenge by Mr B and Ms J considers that until the ADVO has been properly dealt with a cautious approach should be put in place.
The parties have agreed to obtain a family report which will better highlight the issues and provide the court with some guidance going forward.
Interim orders will therefore need to be made between now and the court’s further consideration following the distribution of the family report and then unless resolved, until the proceedings reach a final hearing.
I do not consider that there should be any change in the current parenting arrangements in respect of Y. She has a need to spend significant time with each of her parents and the recommendations of Ms J have been consistent that she would benefit by the least disruption to her current arrangements with the parties to focus on her social and emotional needs.
There is also merit in the recommendations that, in the interim, Z should live primarily in his father’s care but continue to spend significant and substantial time with his mother.
Whilst there has been a focus on recent events, and in particular the disputed circumstances which resulted in the ADVO, the issues that provide the catalyst for Z’s defiant and oppositional behaviour are likely to have their genesis in the simmering conflict between the parties, now of long standing.
Ms J recognises the unfortunate predicament that Z finds himself in with her recommendations for a change in Z’s parenting arrangements significantly supported by the objective evidence that his performance, demeanour, and behaviour at school has shown promising improvement.
The parties and the children are not currently in a vacuum. Whilst their conflict is high and their regard for each other is underpinned by mistrust, they nonetheless have the advantage of an ongoing counselling and therapeutic relationship with Ms J that appears to be beneficial.
The parties are high functioning and whilst I have no doubt each of them has their own agenda, perhaps influenced by a litigation strategy, nonetheless they are keen to see their children advance and progress.
Mr B is currently the subject of an interim ADVO. He is clearly on notice that his engagement with Z needs to be exemplary. Equally, it is a reality that he is the mother’s partner, that they are in a committed relationship, and they share a home together.
I am not satisfied and I do not consider that the evidence supports a finding that he presents a risk to the children, but in particular Z, that should require him to be excluded from his own home.
I have given careful consideration to the primary and additional considerations pursuant to s 60CC and have carefully weighed up the available evidence to assist me in determining that the children need to resume a meaningful relationship with their mother, but in circumstances where they are not at risk.
I propose to fall in with some of the recommendations of Ms J, and will suspend the consent orders insofar as they relate to Z, who will live with his father but spend time with the mother each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday with a further overnight period in the intervening week.
I do not propose to exclude Mr B from the mother’s household but until further order Z will not be left alone with him. This will require the mother to be generally present within her home at all times that Z and Mr B are present.
I have confidence and accept the mother’s position that she is protective of the children and would not allow them to come to any harm even if the risk related to Mr B.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 June 2019.
Associate:
Date: 27 June 2019
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Insolvency
Legal Concepts
-
Appeal
-
Jurisdiction
-
Abuse of Process
-
Stay of Proceedings
0
4
1