Narwald & Narwald (No 2)

[2021] FCCA 1403

FEDERAL CIRCUIT COURT OF AUSTRALIA

Narwald & Narwald (No 2) [2021] FCCA 1403

File number(s):	ADC 5144 of 2020
Judgment of:	JUDGE C KELLY
Date of judgment:	31 May 2021
Catchwords:	FAMILY LAW – interim parenting – parenting capacity – assessment of risk – threats of harm – children’s bests interests
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited:	Narwald & Narwald [2021] FCCA 604
Number of paragraphs:	55
Date of last submission/s:	28 May 2021
Date of hearing:	31 May 2021
Place:	Adelaide
Counsel for the First Applicant:	Ms V Lindsay (28 May 2021;  Ms Purdie (31 May 2021)
Solicitor for the First Applicant:	Purdie Legal
Counsel for the First Respondent:	Mr J Lewis
Solicitor for the First Respondent:	Andersons Solicitors

ORDERS

ADC 5144 of 2020

BETWEEN:

MS NARWALD

Applicant

AND:

MR NARWALD

Respondent

ORDER MADE BY:	JUDGE C KELLY
DATE OF ORDER:	31 MAY 2021

UPON NOTING pursuant to s. 68Q of the Family Law Act 1975 these Orders override the Intervention Order and that the Intervention Order is invalid to the extent of any inconsistency

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.The Orders of 26 March 2021 continue in operation noting that X and Y’s time living with the father commence on Tuesday 1 June 2021 and Wednesday 9 June respectively.

2.Handovers take place between the mother and either of the paternal grandparents at Hungry Jacks Restaurant in Suburb O or at such other location as may be agreed between the parties.

3.The father ensure that the paternal grandparents are present with X and Y for a period of time on each day the children are living in the father’s care.

4.The father provide written confirmation from his employer confirming that he is will be able to obtain leave from his usual duties during those days that X and Y are living in his primary care, such written notification to be provided within 14 days.

5.In the event the father is unable to obtain leave from his employment to provide primary care for the children, then X and Y shall remain in the mother’s care on any such occasion when the father is required to attend his employment with the armed services.

6.Facetime contact pursuant to paragraphs 6 and 7 of the Orders of 26 March 2021 is suspended SAVE as may be otherwise agreed and confirmed in writing by the parties’ solicitors.

7.Paragraph 10 of the Orders of 26 March 2021 permitting communication between the parties by email shall continue provided that such communication is limited to issues in relation to the children and that both parties ensure that all such communication is conducted in a polite and respectful manner.

8.The parties enter into negotiations in relation to the father’s application to be released from the Harman Undertaking and in the event no agreement is reached by Friday 4 June 2021, liberty to the father to relist for further submissions.

9.The mother obtain an update report from her treating psychologist, to be filed no later than 17 September 2021.

10.The Courts Co-Located SA Police officer is requested to provide a Summary Report in relation to both parties.

11.The Courts Co-Located Department for Child Protection Officer is requested to provide a Summary Report in relation to both parties.

12.Pursuant to Section 68L of the Family Law Act 1975 THAT an independent children’s lawyer be appointed to represent the interests of the children X born in 2017 and Y born in 2019 and to facilitate such appointment the parties respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia within seven (7) days of the date hereof and that the independent child/children’s lawyer use his or her best endeavours to be in a position to make submissions to the court on the adjourned date.

13.The Independent Children’s Lawyer consult with the parties and endeavour to arrange a forensic evaluation of each party’s mobile telephone, Facebook or other electronic footprint to be undertaken by an independent expert to be nominated by the Independent Children’s Lawyer and agreed to by the parties and with the costs to be met as follows:

(a)the mother to pay one half as may be allocated through her legal aid;

(b)the father to pay one half at the legal aid rate;

(c)the Independent Children’s Lawyer to meet the balance of any such analysis.

14.By consent Ms P undertake the family assessment noting Ms P’s fees will be met by the mother paying one half of the fees at the legal aid rates and the father paying one half at the Ms P’s usual rates.

15.The hearing on 7 June 2021 before Senior Registrar Heuer is vacated. 

16.The parties vacate or adjourn the Family Dispute Resolution Conference to await the completion of Ms P’s family assessment.

17.The matter is adjourned to 6 December 2021 at 10.00am for further consideration.

18.The parties and Counsel attend Court in person on the adjourned hearing date unless otherwise advised by the Court.

19.Liberty to the parties to vary these orders in relation to handovers and/or other involvement of the paternal grandparents as may be agreed and confirmed in writing by the parties’ legal representatives.

20.Liberty to either party to apply on 14 days notice in the event no agreement has been reached by 30 July 2021.

21.Each party file an update Affidavit (not to exceed 5 pages), if so advised, to be filed and served no later than Monday 29 November 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Narwald & Narwald (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE C KELLY

These reasons were delivered orally and have been edited and corrected from transcript.  I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.

1. These proceedings relate to the parenting arrangements in relation to the parties’ children X born in 2017 and Y, born in 2019.  The matter was argued before me at length last Friday however there was insufficient time for me to deliver my ruling and the proceedings were adjourned.

   BACKGROUND

2. The background to these proceedings is obviously well-known to the parties and summarised in my Reasons published on 26 March 2021[1]. The parties separated in October 2020.  Very shortly after separation the children came into the father’s care where they have remained until recently. 

   [1] Narwald & Narwald [2021] FCCA 604

3. The mother acknowledges that she has struggled with her mental health, including difficulties around the time of separation.  She had filed reports from her treating psychologist in relation to her past history, which were considered by Senior Registrar Heuer in November 2020.  At that time the Senior Registrar ordered that the children remain living in the father’s primary care, pending a psychiatric assessment from Dr D.  Dr D’s report was filed in early December 2020 and following argument on 18 December 2020, the Senior Registrar maintained the father’s role as primary carer, but increased the children’s time in the mother’s care and removed any requirement for supervision. 

4. The mother filed an Application to Review those orders. Following delays surrounding the Christmas period and leave arrangements, the application was determined by me on 26 March 2021, by which time the parties had also attended a s.11F Child Dispute Conference on 15 February 2021. 

5. On the basis of the material available to me, I upheld the mother’s review application and ordered that the children live in each parent’s care on a split-week basis.  These orders provided a substantial increase regarding the children’s time in the mother’s care.   Based on the medical evidence before me and on the s.11F Memorandum, I was satisfied that the concerns previously identified by the father regarding the mother’s mental health and emotional stability were being properly managed and that she was engaged in ongoing psychological support. 

6. The orders pronounced by me on 26 March put in place a regime of shared care for the children.  This may not usually be considered appropriate for a child as young as Y but I concluded that it reflected an appropriate balance of the relevant factors at that time.

   THE CURRENT PROCEEDINGS

7. In the meantime, and unbeknownst to me, other events had been occurring.  The parties had attended mediation on 22 March 2021 and reached agreement in relation to their interim parenting arrangements.  The details of that agreement are not before me, of course. Later that same day the mother received a message via Facebook Messenger from an unknown person called Mr Q, informed the mother that he had participated in a Facebook exchange with the father that ended with the father allegedly threatening – “If I don’t have them, no one will.”[2] 

   [2] Mother’s Affidavit filed 25 May 2021, Annexure “1”, pages 13-16

8. This must have been an extremely concerning and distressing message for the mother to receive, even more so in the circumstances where the most recent communication between the parties – at the mediation – had been reasonably productive and not an overtly hostile or emotional.   That is to say, this apparent threat was conveyed in a manner, and at a time, when the parties were communicating relatively calmly and the mother felt that this threat could not be attributed to a dysregulated, over-emotional response by the father.  She became extremely concerned for the welfare of the children and has since withheld the children in her care. 

9. The father was informed of the mother’s concerns through her solicitor’s letter dated 25 March 2021.[3]  This letter also indicated that the mother had obtained a grant of legal aid and would be pursuing an urgent application to suspend the existing parenting orders. 

   [3] Father’s Affidavit filed 23 April 2021, Annexure”-2”, page 14 of 22

10. At the same time this was unfolding, the mother also sought an intervention order on a private basis through the Suburb R Magistrates Court.  That intervention order was granted on 30 March 2021 and pursuant to s68R the state Magistrate suspended the parenting Orders made by me, pending further hearing in this Court. 

11. The father says he waited to receive the mother’s urgent application, but when no such application was filed, he then filed his own Application in a Case on 23 April 2021 and that is the application which is now before the Court.

12. The father says that he was not involved in this Facebook exchange and does not know anyone called “Mr Q”.  He does not have any explanation as to how this exchange came about, but says it was not him.  The father was so concerned by these allegations that he instructed a forensic computing expert to undertake an analysis of his electronic equipment, to check whether there is any reference to this Facebook exchange with Mr Q.

13. The father has filed an Affidavit from his expert witness, Ms S, of Company T, formerly a Senior Electronic Evidence Specialist with SA Police.[4]  Ms S has apparently analysed the father’s phone and could not find any record or reference to Mr Q on any of the sources examined, including data records held in “the Cloud”. Based on her extensive examinations, she cannot see anything that links the father with the alleged Facebook exchange with “Mr Q”. Further, she says there was nothing that indicated electronic/digital data had been deleted around the relevant times, or that the Facebook stream had been altered or deleted at the relevant times. 

    [4] Affidavit of Ms S filed 23 April 2021

14. Based on this evidence the father says there is no justification for the mother to suspend the existing parenting orders. Indeed, he is sufficiently concerned by these developments to query whether the mother is somehow implicated in this Facebook exchange.  If so, the father is concerned that the mother’s mental health is still unstable, in which case he would be opposed to the children spending more extensive time in the mother’s care, as ordered by the Court on 26 March 2021.

15. The mother filed her answering documents on 20 May 2021, and her Affidavit sets out her concerns, particularly the threats of harm contained in the Facebook message she received from “Mr Q”.  The mother’s interim Response initially sought that the children’s time in the father’s care be suspended.  In the course of the hearing Counsel for the mother, Ms Lindsay, indicated that the mother now proposed that the children spend limited daytime visits in their father’s care, supervised by the paternal grandparents, pending further investigations regarding the children’s safety and welfare in the father’s care.  Counsel submitted that the mother remained extremely concerned for the children’s safety and welfare, but acknowledged that short supervised visits would mitigate the risk.

16. Unfortunately I was on leave throughout May and there was no opportunity for the father’s Application to be listed until late May 2021.  Therefore we now have a situation where the children have not spent any time in their father’s care since late March 2021, a period of nearly two months. 

17. The Court was sufficiently concerned by that situation to order for the children to immediately spend time in the father’s care on the Sunday following the hearing, to take place in the presence of the father’s parents.  In that regard, I note that the parties have only lived in South Australia for two years and previously lived in Queensland, where their family remain. The paternal grandparents are apparently present in Adelaide and will be remaining for the next two months.

    DISCUSSION

18. The issue before the Court today relates to the assessment of risk for X and Y.  At the time the interim parenting orders were pronounced in November 2020, the father identified a range of significant concerns arising from the mother’s text-message and electronic communiqués, indicating that she was experiencing a disturbingly high level of psychological distress surrounding the parties’ separation. 

19. As noted above, the mother acknowledges that she has had a history of mental health difficulties.  She concedes that she experienced significant emotional distress in the weeks leading up to the parties’ separation and that her communication with the father, and others, would have been concerning.  In particular the mother threatened to hurt the children[5] kill herself during a text exchange with her friend Ms M.[6] 

    [5] Father’s Affidavit filed 2 November 2020, “1”, page 16 of 28

    [6] Ibid, see particularly Annexure “4”, page 26 of 28

20. Ms Lindsay argues that the mother’s messages need to be viewed within a context of the emotional distress that the mother was feeling at that time. She further argued that:

    (a)the text messages the mother sent to the father were a reaction to their impending separation and did not mean that the children were actually at risk of harm in her care;

    (b)her communication and text messages sent to her friend, Ms M were a cry for help and not a serious threat of self harm; and

    (c)by contrast, the threats contained in the father’s alleged Facebook exchange were made to an unknown third party and should be taken much more seriously. 

21. Ms Lindsay argued that the father’s alleged threat is much more serious, when examined closely.  The alleged exchange apparently took place on the day of the mediation and reads:[7] 

    [7] Mother’s tender bundle, page 61, Facebook exchange allegedly between the father and a third party

    Great news.  It is all over now.

    Is it all over now? says “Mr Q”. 

    Mr Narwald, the father, apparently replies:

    No, but I’m still their primary caregiver.  I would never have accepted it any other way. 

    “Mr Q” responds:

    Shame the Court doesn’t do that with all fathers.

    The father allegedly responds:

    Essentially, I don’t have to worry about her getting them.

    The final message, allegedly from the father, allegedly says:

    If I didn’t have my kids, I would make sure no one did.

    After this exchange “Mr Q” was apparently so concerned that he located the mother on-line and sent it on to her.

22. There are many confusing aspects to this Facebook exchange. First, no-one knows this person “Mr Q”.  Second, there is no apparent record of it on the father’s phone.  Ms Lindsay asked the Court to reject the forensic analysis provided by Ms S, as her expertise has not been established.  Obviously Ms S’s expertise can be challenged, but I am not prepared to reject her report out of hand at an interim hearing, given her expert opinion is the only available evidence on the topic. 

23. The father has gone to a great deal of effort and, apparently, a great deal of expense, to demonstrate that he was not involved in any communication with “Mr Q”.  At one level, the Court would have to ask why the father would go to that expense if there was any risk the exchange would show up on his phone or in his Facebook thread. 

24. Ms Lindsay pointed out that the exchange could have been generated on equipment other than the father’s phone or through some other electronic means that those of us in the courtroom today simply do not know or understand.  Ms S’s evidence indicates that it appears unlikely the father participated in this exchange with ‘Mr Q”, however I can rule it out or discard it absolutely.

25. In assessing this evidence, the alleged exchange does indicate a surprising change in tone from the father, given that much of his earlier text message communication with the mother appears to be generally supportive.[8]  The mother holds a very different view of the father’s behaviour towards her during the relationship.  She says that he behaved in ways that were emotionally abusive and equated to a pattern of coercive and controlling behaviour.  She says that he undermined her self-confidence as a mother and that his emotional manipulation in the months prior to separation eventually lead to her becoming emotionally distressed and dis-regulated.

    [8] For example see Father’s Affidavit filed 2 November 2020, Annexures “1”, portion of the text messages exchanged on 9 July 2019; and “2”, portion of text messages exchanged on 7/8 February 2020

26. The father disputes that his behaviour was in any way coercive and controlling. On the contrary, he says that he was doing his best to be a supportive and loving partner.  These are not matters that I can determine today, on the contested evidence before me. 

27. What I can conclude with more confidence today is that the mother was the children’s primary caregiver during the relationship.  That is the conclusion reached by me on 26 March 2021.  The father was employed full time in the armed services and was required to travel interstate on occasions, as well.  I accept that the father also played a meaningful parenting role in the children’s lives.  The mother is critical of his parenting engagement, but I accept that the father assisted with the children’s care when he was available.

28. The father says that his parenting contribution was even greater because of the mother’s erratic, emotional outbursts, which required that he step up and take on a more significant role in caring for X and Y.  I cannot make interim findings about these matters, given the evidence is hotly contested.  Nonetheless I was sufficiently confident about the extent of the mother’s previous parenting role to substantially increase the children’s time in her care on 26 March 2021, once I was satisfied that she was psychologically stable and able to provide a secure and safe parenting environment for the children.

1. The parenting regime put into place by me never came into effect.  At the time the mother withheld the children on 23 March 2021, the orders from 18 December 2020 were in operation – that is, X and Y were living in their father’s primary care and spending time in their mother’s care overnight each Sunday and for day visits each Wednesday and Friday.  The orders from 26 March 2021 would have imposed a substantial change regarding the parenting arrangements, had my orders been complied with. 

2. The fact that the mother did not file her anticipated interim Application is surprising.  Ms Lindsay was not able to account for that delay, beyond noting that her instructing solicitor had some health issues at the time.  Ms Purdie is an experienced and professional practitioner who normally represents her clients in an efficient and proactive manner and I do not make any criticism of the mother or Ms Purdie in that regard.  However, it is concerning that there was no capacity between the parties and their legal representatives to negotiate some arrangement for the children to see their father across the intervening couple of months.

3. The question for today’s purposes is: what parenting orders are in the best interests of X and Y?  Is it appropriate that the children’s time in the father’s care be limited in the way proposed by the mother – to short, supervised visits – in circumstances where the children had been living in the father’s primary care between October 2020 and late March 2021, and in circumstances where the interim orders pronounced on 26 March 2021 provided for both parents to retain a substantial parenting role going forward? 

4. Is it appropriate to substantially limit their time with the father as a holding pattern, while investigations are undertaken regarding the father and including the update report from the mother’s treating psychologist, as ordered on 26 March 2021, or a family report?  I had understood that a family report had previously been ordered by me or by Senior Registrar Heuer, but it seems that is not the case.

5. The mother urges the Court to accept that the alleged Facebook exchange indicates a situation of significant potential risk to the children’s safety, as the father may harm the children if he does not achieve the parenting outcomes he wants. She argues that X and Y should only spend supervised time in the father’s care, to ensure their physical and emotional safety, until these risks, and the father’s emotional stability, is further assessed. 

6. The Magistrate’s Court was sufficiently concerned to put in place an interim Intervention Order naming the mother and the children as protected persons.  However, it must be remembered that this Court has access to a great deal more information than is available to the sitting Magistrate. I have all of the parties’ Affidavit material, including the psychiatric report from Dr D, in addition to the Child Dispute Memorandum and the forensic report from Ms S.  This Court inevitably has greater insight into the parties’ past behaviour and relationship dynamics than does the Magistrates Court. 

7. The assessment of risk process that I undertake must take into account the reality that the children had been living substantially with their father over the intervening months.  There is limited material on the court file that raises any immediate alarm bells regarding the children’s safety in the father’s care, other than the alleged Facebook exchange.

8. The mother says that the children are not coping in their father’s primary care.  She says they miss their connection with her as their primary carer and find the number of handovers unsettling.  She also raises concerns about the father’s parenting style, but notwithstanding those issues, the mother still supported a regime of regular overnight time for Y and X when she met with the Family Consultant in February 2021.  That continued to be her position until the Facebook messages arrived in her inbox on 23 March 2021.

9. I accept the messages would have been disturbing and potentially terrifying for a parent in her situation.  That is another factor to weigh up in my assessment of the children’s best interests. I must weigh up the impact those messages may have had upon the mother, and the potential risk associated with those alleged Facebook messages, together with the remainder of the evidence before the Court today, which is:

   (a)the father’s absolute denial and confusion as to where the messages have come from;

   (b)the forensic analysis report from Ms S; 

   (c)the mother had previously sent a number of alarming text messages around the time of separation, which the father found equally worrying; and

   (d)the mother had previously endorsed a regime of overnight time for the children.

10. Both parents find themselves in a situation where they have seen communication from (or allegedly from) the other parent that was frightening and raised real concerns about the children’s safety.  The mother says that her text messages should be seen in the context of “a cry for help”, whereas the ‘Mr Q” Facebook post should be read as a direct, intentional threat of harm.  She argues that the Facebook post is a genuine threat or alternatively, was designed to frighten or intimidate her.

11. That is one interpretation of the Facebook exchange, if I accept the messages were sent by the father.  However, I do not know whether this Facebook exchange actually was between the father and “Mr Q”.  The difficulty in assessing the weight to place upon this message stream is that there is no other evidence suggesting that the father has previously made threats or comments of a similar nature. 

12. As noted above, the mother alleges that the father demonstrated a level of coercive and controlling behaviour that was manipulative and emotionally undermining.  She says that the father deliberately placed her under increasing emotional and psychological pressure in the hope that she would “crack under the pressure”. 

13. The mother was emotional unstable following the separation, but she has since demonstrated her capacity to parent the children safely, with ongoing psychological support and emotional support, to the point where the Court ordered that she resume a substantial parenting role.  Is there now a risk that the mother’s parenting capacity will be, or has been, undermined by the Facebook exchange recently sent to her?

14. There is no easy answer to that question, and it is not a question that the mother’s most recently filed Affidavit has addressed.  That affidavit does address a range of other concerns held by the mother regarding physical discipline and other aspects of the father’s day‑to-day parenting.  She also alleges that the father is engaged in an ongoing pattern of “gas-lighting” or undermining her mental health before the Court.

15. These are all matters that will be relevant to the children’s longer-term living arrangements, which would generally be investigated through a family report.  These concerns are not such significant issues that would lead me to revisit the orders pronounced by me on 26 March, given that the Court substantially increased the children’s time in the mother’s care.

    CONCLUSION

16. My assessment of the children’s best interests comes back to the inevitable balancing of the Court’s responsibilities – to make orders that are in the children’s best interests, to ensure that the children are not exposed to an unacceptable risk of harm, and to ensure the children are able to maintain a meaningful relationship with each of their parents, provided it is physically and emotionally safe to do so.

17. The Facebook incident raised the mother’s level of alarm and lead her to withhold the children. Her concerns relate to the father’s potential reaction if he does not receive the outcome that he wants and to the potential threat of physical harm to the children.  I take into account all of the evidence before me, including evidence that both parents have recently made contact with counsellors to support their children’s developmental needs. This evidence demonstrates both parents’ commitment to X and Y’s welfare in that regard. 

18. The Court’s responsibility is to considering the evidence as a whole.  I conclude that, aside from those two lines, or few lines, in the alleged Facebook exchange, the evidence does not indicate that there is a substantial risk of harm for the children from their father. I conclude that that the children are not at substantial risk of harm if they resume spending unsupervised time in the father’s care. 

19. I am conscious of the impact that this decision may have upon the mother’s psychological/emotional welfare.  I must consider whether her fears for the children’s safety may undermine her parenting capacity, particularly her capacity to facilitate the split‑week shared parenting regime, and whether that is a factor that should weigh with me as well.

20. Ms Lindsay’s submissions drew the Court’s attention to this risk, referring to recent tragic events that have occurred, which have been deeply distressing for the whole community.  Those tragedies are distressing for us all, but the Court must decide each case on the evidence presented, not on external events. 

21. Ultimately, I accept the reassuring assessment from Dr D, and from the mother’s psychologist.  I am satisfied that the mother’s psychological status is substantially improved, compared to her presentation in October 2020.  I am confident that the mother will continue to access ongoing support from her psychologist and that she is well supported to process the Court’s decision and to ensure that she does not react in a way that may jeopardise the children’s emotional welfare.

22. I conclude that the mother’s application to limit the children’s time with the father to limited supervised time is not in the children’s best interests. The evidence is not at the level that would see the children placed at an undue risk of harm if they resume spending unsupervised time in the father’s care.  I also consider the children should be returned to the mother’s care in the event the father is required to work on any given day and is not available to care for the children.

23. In an effort to provide some reassurance to the mother, I will order that the paternal grandparents be present for a period of time each day that X and Y are in their father’s care.  I will also order that the father’s parents assist with handovers, to minimise any direct interaction between the parties.  I appreciate that the paternal grandparents will eventually be returning to Queensland and these orders may need to be re-visited at that point.  

24. The parties have agreed to instruct Ms P to undertake a family assessment, which is an appropriate next step.  It will also assist to seek additional information from the SA Police and the Department for Child Protection.

25. This matter will benefit from the appointment of an Independent Children’s Lawyer and the parties consent to that order.  I will order that the ICL arrange for both parties’ phones to be forensically examined, given that the father has queried whether the mother herself created this Facebook post.  The father has already paid to have his phone examined, but the mother is entitled to know that any examination is conducted at arms-length by an independent expert.  Both parties will feel confident that the same procedure applies equally and that it is undertaken by someone who has access to all relevant electronic/digital material from both parties. 

26. For the reasons above, I decline to suspend or substantially reduce the children’s time in the father’s care.  Equally, I decline to reduce the children’s time in their mother’s care.  Finally, I will specify the commencement day for the resumption of the children’s time in each parent’s care, pursuant to the orders pronounced 26 March 2021.

27. I now make orders as published at the commencement of these Reasons.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C Kelly.

Associate:

Dated:       23 June 2021