PADANOWSKA & PADANOWSKI

[2019] FCCA 3823

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI [2019] FCCA 3823

Catchwords:
FAMILY LAW – Interim parenting proceedings – risk to children – text messages relating to inability to cope with children.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS PADANOWSKA

Respondent: MR PADANOWSKI

File Number: PAC 5760 of 2019

Judgment of: Judge Myers

Hearing date: 27 November 2019

Date of Last Submission: 27 November 2019

Delivered at: Parramatta

Delivered on: 27 November 2019

REPRESENTATION

Solicitors for the Applicant: Ms Wilkins

Solicitors for the Respondent: Mr Sui

ORDERS

1. Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in the Parramatta Registry on 11 March 2020 at 10am AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court.

2. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2016 and Y born in 2018 and the Legal Aid Commission of New South Wales is requested to provide such representation.  The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. A Language G Interpreter is requested for the mother next occasion, at the Limited Issue Report interview and for the Child Dispute Conference.

4. Pursuant to s.62G (2) of the Family Law Act 1975 the parties attend upon a family consultant nominated by the Manager, Child Dispute Services in the Parramatta Registry on a date and time to be advised for the purposes of the preparation of a Limited Issues Report, that comments upon whether the mother’s mental health concerns place the children at risk of harm

5. The parties are granted leave to issue more than five subpoena.

6. Translated text message communication between the parties are received into evidence. They will form Exhibit “A” in the proceedings.

7. The mother is to attend upon her psychiatrist to whom she has been referred by her GP:

   (a)The mother is to provide to the psychiatrist a copy of Exhibit “A” in the proceedings.

   (b)The mother is to explain to the psychiatrist that the text messages on the left hand side are alleged to be the mother’s messages and the text messages on the right are alleged to be the father’s text messages.

8. The parents be prevented by injunction from physically disciplining the child and allowing anyone else to do so.

9. Pending further order, children X and Y will live with the father and spend time with the mother each week from 9am on Tuesdays to 5pm on Wednesdays and from 9am on Friday to 12noon on Saturday every week.

10. For the purposes of collecting and returning the children to and from the mother, the father will cause the paternal grandfather or another servant or agent to collect and return the children from and to D Street, Suburb E.

11. For the purposes of these orders, the mother’s time shall at all times be supervised by the mother’s friend Ms F.

12. The solicitor for the Applicant is to cause Ms F to file with the court an undertaking to supervise the mother’s time by 4pm tomorrow.

13. The matter is adjourned to 16 December 2019 at 2:00pm for Interim Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5760 of 2019

MS PADANOWSKA

Applicant

And

MR PADANOWSKI

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. These are contested live with proceedings in relation to two children of the relationship of the parties.  The parties have X, born in 2016 currently three years of age.  The parties have Y, born in 2018, Y is 15 months of age (“the Children”).

2. The mother has given a long history of what might be described as family violence. The mother denies the issues with her mental health and deposes:

   I deny being diagnosed with mental illness or suffering from mental illness or suicidal ideation.

3. There are a lot of issues in dispute in this case.  There are a lot of facts that are not agreed.  The few things that are agreed are these.  The mother is 33 years of age. The father is 39 years of age. The mother immigrated into Australia with her parents in around 1995 and the parties commenced an online relationship in about 2013 and were married in 2014 in Country G. The parties moved to Australia in about 2014 on a temporary tourist visa and commenced cohabitation.  In about 2015, the mother was granted a partnership visa.  In or around 2018, she was granted permanent residency.

4. The mother suggests that on 19 November 2019 the father left the children and the former matrimonial home following what she describes as a domestic violence event in relation to her hospitalisation in Suburb K Hospital.

5. The mother suggests that on 19 November 2019, the father said words to her to the effect of, “The kids are in a safe place. You’ll never see them again”, and the mother hasn’t spent any time with the children or had contact with them since or about 19 November 2019.

6. Now, the mother has done her best to obtain some information from the hospital. I appears the mother was not admitted as a patient, but she was certainly seen by the hospital.  Notes from the hospital show that the mother presented at the Suburb K Emergency Department.

7. The notes set out:

   Found outside DNA clinic and stated her husband is abusing her.  Her husband has been located and denies.  He states the patient is depressed and is attempting to drink cleaning chemicals.

8. The notes suggest the police were notified coming to interview the patient. There is a notation that states “Poisoning: no”.

9. The notes set out that the mother had not been poisoned. There are questions about the father’s evidence where he suggests the mother had tried to ingest some sort of cleaning chemical, namely, Domestos.

10. The notes further set out:

    A 30 year old Country G woman has recently been discharged from emergency department with chest pain and presenting with staff a few minutes after –

11. The mother does go to the emergency department. The mother has detailed in her first affidavit what took place in the emergency department. I have a copy of that affidavit here and I will just go through what the emergency department notes show.

12. The emergency department notes are in the form of a discharge summary, forming annexure 2 to the mother’s affidavit.

13. The notes are best described as a letter to the mother’s GP.  The discharge final report sets out:

    Thank you for your ongoing care of the mother – a 32 year old female who was seen at Suburb K Hospital Emergency Department being unwell with chest pain. She was hyperdynamically stable, and investigations clear blood and CXR.  She was seen by Dr S and Dr T and was discharged with the following plan.

    Discharge plan.  Home with food and drink as tolerated.  GP in two days for review really concerning – re: acute concerns of worsening of symptoms.  Please refer below for ED assessment.  Chest pain with pleuritic chest pain radiated to left shoulder, aggravated with movement, especially getting up from chair.  Five out of 10 continuous since.  Associated with shortness of breath.  Nil abdominal pain.  Nil nausea and vomiting.  Denies coryzal symptoms.  Deny heart attack and add smoking and cholesterol.  Reports stressed with children.  Social.  Live with family.  Nil smoking.  Nil smoking – smoked two cigarettes yesterday.  Looks well.  Afebrile.  Stable vitals.

14. The mother was discharged, but then after the discharge the mother finds herself in the mental health unit.

15. A further report sets out:

    The husband informed the staff the mother threatened suicide and is depressed.

16. So interestingly, the mother in the first instance goes in to see the emergency department.  She is talking to the emergency department about her chest pain.  One of the notes describes the mother as:

    Reports stressed with the children.

17. The notes further set out:

    Admits to threatening to kill herself sometime last week., said she didn’t mean it. Verbalised these threats since her husband continuously asked for a divorce. Ms Padanowska says she loves her children and she’ll never harm herself. 

    Today Ms Padanowska was angered by the fact that Mr Padanowski (the husband) came into the hospital he informed her that he left the kids in the care of his parents and she was not going to see them ever again.  Ms Padanowska says she started to yell at her husband, demanding her children back such that the hospital staff intervened.  The staff contacted the DV helpline and police were informed.  Patient claims she was told that she was not going to see her kids today. 

    Ms Padanowska says since her marriage migrated to Australia, has nil friends or family in Australia.  Says her husband has not been allowing her to drive to find work.  Reports her husband’s family have been saying derogatory things about her parenting and as a mother.  Ms Padanowska says Mr Padanowski has yelled at her many times in the presence of the children. 

    Denies current thoughts of harm to self or others. 

    Denies having any suicidal or homicidal thoughts. 

    Spoke to husband – spoke to patient’s husband Mr Padanowski. 

    Reports Ms Padanowska has a history of shouting and yelling when they argue.  On a few occasions she has threatened suicide.  Mr Padanowski showed writer a photo of mother seated on the floor holding a Domestos bottle. As per her husband she had threatened to drink the fluid.  All these threats happened about three to four months ago. 

    Mr Padanowski says Ms Padanowska has been asking for a divorce

    The court notes that in these proceedings the mother suggests that it is the father who has been asking for a divorce. The notes go on:

    He managed to file the papers, offered the mother the papers. Offered Ms Padanowska the papers and she threw them in the trash can.  Husband says that the Ms Padanowska has previously shouted at him while he was holding their child, at times threw things at him while he was holding their child. 

    Mr Padanowski thinks father needs psychological help

    and were planning to see a GP in view of starting a mental health care plan. 

    Her assessment considered suicidal ideation, preparation or plans?:  yes. 

    Has assessment considered risk to harm of others?:  Yes.

18. The notes further set out:

    Born in Country G.  Migrated to Australia five years ago after marriage to Mr Padanowski.  They have been married for five years. Mr Padanowski works as a professional full time, and Ms Padanowska is a stay at home mother.  She has never worked since living in Australia.  Previously worked as a customer service officer in Country G.  The couple have two children. X aged three years and Y aged one year. Family live in privately owned home.

19. Further down the notes state:

    Thought Content Risk Factors:

    Does the person have ideas of hopelessness, worthlessness or guilt?  No. 

    Does the person have current thoughts of planning to suicide?  No. 

    Does the person have current thoughts or plans about hurting others?  No. 

    Does the person have delusions which are likely to create anger, fear or entitlement?  No.  Perceived risk factors. 

    Does the person have command hallucinations?  No.

20. Further down in the notes, under the heading ‘Formulation and Diagnosis’ the notes state: :

    Formulation

    33 year old female with nil past MH history.  She has presented earlier with chest pain and was D/C [discharged].  She was referred to ED [emergency department] after patient had a verbal argument with her partner outside the hospital vicinity.  According to the patient’s husband she has previously threatened suicide, as mother believes her husband wants a divorce.  She has also stated her husband previously harm herself, as well as divorce her husband.  Nil current feelings of sadness/depression. Denied current thought of harm to self or others. Denies having suicidal or homicideal th-.

21. The father submits the mother has mental health problems.  The mother suggests she does not.  One of the extremely concerning features of this case is a string of text messages that I have earlier read out forming Exhibit “A” and I will not sit here going through them again on the record this afternoon where but I have already read them onto the record.  The mother says that the messages are not hers. The messages are from the mother’s phone to the father.

22. The messages detail that the mother has assaulted the children.  They detail that the mother has threatened the children and that she mentally and physically – she cannot cope.  They talk about the mother suffering stress as a result of her two children doing such things as throwing dirt on the ground, throwing washing around, doing things that kids often do, but it has caused the mother more than the usual frustration such that she has hurt them, hit them, stripped them, and a range of other reactions.  The messages are really concerning.

23. What the mother says is this.  Her explanation is that the father had her mobile phone and that he has sent the text messages for the purposes of creating evidence that would support him keeping the children.

24. The separation is really recent in this case.  If one believes the mother, the Court must ignore the fact that during the course of these text messages the mother or the person purporting to be the mother suggests in the text message she will go to the police. The text messages actually show that the police used the mother’s phone and then started to send text messages to the father demanding that he call them. The police became quite angry at the father, because he refused to take their call as he was in a meeting. The father did not take the police’s call, and they are actually quite curt with the father and tell him:

    Get off the phone stop texting and ring us up.

25. I am either asked to consider something that would be usual, that the mother has a mobile phone and that she is the author of the messages, or I am asked to accept something that is extremely unusual, that the father is deliberately making up the text messages, texting himself and texting himself back. The mother asks the Court to accept something that on the evidence is unlikely.

26. The thing that makes the mother’s version of events difficult to accept is the fact that along the way the police – a third party become involved in the text messages, which is the police. It is the exchange of those text messages that causes me to doubt, seriously, for the purposes of today’s proceedings that these are not the mother’s text messages. The Court is more inclined to accept that they actually are the mother’s, because the police took control of the mother’s phone and demanded the father, “Ring me back”.  There is a third possibility and maybe the mother does not remember the text messages, because she was in a psychologically distressed state.

27. In any case, the mother has caused to be filed some material in the proceedings where she has, to the best of her ability, gone to see her GP to get a report. The report from her GP says is this:

    Thank you for seeing the mother aged 33 years –

28. The mother attended Suburb U Medical Centre. The report is a letter to Dr V at Suburb W and it is written by Dr Z, who I think I understand to be the mother’s GP.  The report sets out:

    Thank you for seeing Ms Padanowska age 33yrs 11 mths for opinion and management.  She is a victim of domestic violence.  She’s been seen at the MH unit at, [Suburb K local hospital] following a possible panic attack that followed an assault by her partner, during her admission her partner took hold of the three children and moved them away from her claiming she had a mental health disorder and stopped her from seeing her kids.  She had an assessment during her stay by the attending registrar and was discharged without diagnosis.  My impression is acute stress response to domestic violence.  If you can conduct, please, a thorough assessment and provide her a letter to present to the Family Court.  Her K10 score was 15 out of 50.  She has no history of MH disorder.

29. The final assessment of the mother has not taken place. The best way to describe today’s proceedings are as interim proceedings, where there will be further interim proceedings after the mother undertakes that next mental health assessment.

30. I am concerned that there is self-reporting in this case by the mother. If the text messages are correct and what the mother tells the hospital is correct, on her first admission to the emergency department she is “stressed by children”.  If these text messages are the mother’s, which the Court is more likely to accept than not, the mother is really stressed by these kids.

31. It is an agreed fact that the mother is on her own.  She is from Country G.  She has no family, no parents, no siblings and really no support in Australia. The mother’s relationship disintegrated around her.  The Court is likely to accept that the mother is struggling. The Court must consider for the purposes of today’s proceedings what the Court does do. The text messages that I have received into evidence that have been translated form Exhibit “A” for the proceedings.

32. The Court turns to the provisions of section 60CC to consider what to do in this case, trying to make some sense of the evidence, and work out what is in the best interest of these children.  There is no doubt there is a benefit in these children having a meaningful relationship with both parents.  The Court must consider the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.

33. These are not 15 year old children.  They are not 12, they are not even 10.  One child is a 15 month old and the other a three year old child.  They are wholly dependent on their parent’s care.  Yes, children can be frustrating.  Yes children can do things like spill dirt, tip over washing, hit their parents and a range of things. The complaints in the text messages (that the mother alleges the father made) are the sort of complaints the Court would accept would come from a parent that is struggling with young children. A parent struggling where the children are mucking up, where they are dragging dirt and they are spilling water, are tipping over washing and where they are hitting the parents. The difficult part is that because they are so young they will likely continue to do those things.  The Court must be satisfied that these children are not placed at risk of abuse or family violence or neglect.

34. And what Exhibit “A” speaks of is a parent unable to cope. A parent screaming out to the other parent, who is at work, “Help me.  Help me, please, where I cannot cope and I have hit these kids”.  Crying out for help because she cannot cope.  Where, if the Court accepts the mother’s version, the father is probably one of the most sinister and most diabolically calculating people this Court has ever seen, or on the father’s response they are really the mother’s text messages and she really is struggling. Given the intervention of the police in the text message chain, the court finds that for the purposes of trying to balance the best interests of these children, it is more likely that not that the text messages are sent by the mother.

35. I do not make a final finding about it, but for the purposes of today given the constrains of this hearing where I have limited information and I am trying to balance the best interests of these children, I think that it is more likely that it is the mother’s text messages than the father’s.  The mother’s text messages are concerning.  They do speak of a parent unable to cope, who has probably exposed the children to either family violence or abuse in the process of emotionally unravelling, because they cannot cope.

1. But I should say this, as well.  There are ways and means by which the Court might ameliorate that risk, and one of those ways that we might ameliorate that risk is putting the mother in a position where maybe one of her friends can be around, so that if she is really struggling somebody is there to help her cope. The Court notes the mother is supported by at least one of her friends in the Court today, and at the end of delivering this decision I am going to ask for some submissions to be made about whether the mother’s friend is able to provide some supervision of the mother.

2. There is allegations made against the father that he is the perpetrator of family violence, and I note that the father has been charged and his matter is returnable before the Court tomorrow.  The father tells the Court that this has happened before.  The father suggests the mother has made scurrilous allegations previously and those have been dismissed.

3. The mother complains that she is a victim of family violence, and she may well be, and maybe it is the reason she cannot cope, because she has nobody.  She does not have her parents, she has not have any siblings and she is perhaps in a violent relationship. For the purpose of these proceedings today, the Court notes again that that is a contested matter that will be dealt with in the local court, and I cannot make findings about the allegations today.

4. Nobody suggests the father has threatened to kill himself and nobody suggests the father has threatened to kill the kids or otherwise has been abusing the children.

5. I do not have any views expressed by the children.  They are just simply too young, and I am giving the parties the resources. The Court has available to it to try and work out what is in the best interests of these children.  I have appointed an ICL.  I am going to obtain a limited issues report and I am going to have the parties attend a child dispute conference.

6. It is hard for me to determine what the nature of the relationship is between the children and the parents.  I suspect the children love both the parents, but if both parties are right these children are exposed to significant conflict and based on the text messages, they are being exposed to less than adequate care by the mother where she cannot cope.

7. I do not know the nature of the relationship between the children and anybody else.  It is not a case about whether a parent has failed to participate in making long-term decisions in relation to the children or has failed to communicate with the children.  It is not a case about parents failing to fulfil their obligations to maintain the children.

8. The children are currently separated from the mother, and they need to spend time with her.  It is a set of circumstances that in the view of the Court is not appropriate, but at the same time they need, in my view, to be kept safe until such time as the mother does go and see a psychiatrist. I do hope the mother will provide a copy of a report from a psychiatrist.

9. The change in the children’s circumstances where they were living primarily with the mother and spending time with the father will, for the time, change.  It is not necessarily ideal, but that change is one that is designed to try and ensure, until the Court is provided better evidence that the mother is okay, that these children are kept safe.  I do not want these children placed in a position where the mother does something to them where she cannot cope, because that is what these text messages suggest she will do.

10. So as I have said, the effect will be great, but if I ameliorate that effect by ensuring the children are spending frequent and regular time with their mother, that will somewhat ameliorate or otherwise mitigate the effect of the separation on these children.

11. There is nothing in the practical difficulties or expense of the children spending time with or communicating with a parent, the Court gives weight.

12. I do not accept that there is evidence sufficient to establish that the father lacks the capacity to provide for the needs of the children, including their intellectual and emotional needs.

13. If the Court accepts only in part Exhibit “A”. It must again be said that the Court does accept that it is more likely than not that they are the text messages from the mother, then the Court calls into serious question the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs.

14. There is nothing in the material, sex, lifestyle and background of the parents that the Court gives weight.  These are not Aboriginal or Torres Strait Islander children.

15. This is not a case about the parents having a bad attitude towards the children or towards parenthood. What these text messages speak of is somebody that is isolated, that is finding it really difficult, that cannot cope.  They do not speak of somebody who is a horrible parent.  They speak of a parent who is just unable to cope for the time being, who is overwrought.

16. The Court considers the attitude to the children by the father. He might be criticised for not stepping up sooner.  If the text messages are right, The father kept writing back, “I’m busy”, “I’m at work”, “I’m in meetings”, and his partner is calling out, “I need help.  Help me.  Help the kids”.  He has stepped up for the time being.  He has taken the children on in circumstances where perhaps the mother cannot look after them.

17. Is there family violence? If the text messages are right there is.  Has there been violence.  The mother speaks of it.  This is not necessarily a recent occurrence.  Maybe the father is the perpetrator and maybe that is the thing that makes the mother’s life all the more difficult and maybe that is the thing that makes the mother’s life even harder to deal with, and it has meant that it has been harder for the mother to cope.

18. The mother alleges family violence, the father denies it. The father has been charged, and it is a matter that is going to be trialled in court. Maybe the local court will make some findings about family violence, maybe the father will be prosecuted and at the end of those proceedings he will be convicted.

19. So the Court cannot make any findings that family violence has happened, but it also cannot make any findings that the family violence has not.

20. No matter whatever orders I make today, there will be further orders and further proceedings. I do not make these orders today with the view that they are going to stand for any long period of time, in fact, I am going to bring the matter back for another interim hearing in December.  This matter needs a close eye on it.  The Court needs to know what is going on from month to month.  So I am not proposing that I make these orders and the matter just remains floating around for the next six months.  The matter is going to come back and is going to be re-heard. The Court will look at it again.  We are going to see what is happening, we are going to see what is happening with the mother, we are going to see what is happening with the psychiatrist, and we are going to see what the further evidence suggests.

21. I will make an order the mother provide a copy of those text messages, Exhibit “A” to the psychiatrist, because, as I said, maybe these are text messages that the mother did send and she cannot remember sending them because of the circumstance she found herself in. Maybe she disassociated, I do not know, but a psychiatrist might have some view about it. A psychiatrist might provide some insight and some assistance.

22. It is not appropriate to apply the presumptions found in s61DAA of the Family Law Act 1975 in these proceedings. This is unfortunately not a matter where the court can make some order about the children living with one parent and spend equal time or substantially significant time with the other. Where there are serious risk issues in this case, it is not in the best interest of the children, and it is not reasonably practicable for the children to be returned to live with the mother.

23. I am left in a set of circumstance where, for the time being, until I have more evidence, until I can satisfy myself about a complete amelioration of any risk in the mother’s household with respect to the issues arising from Exhibit “A”, being those text messages, I will leave the children living with the father, but I want the children to spend time with the mother, and I mean significant time that is supervised by somebody suitable.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Myers

Associate: 

Date: 11 March 2020