PADANOWSKA & PADANOWSKI (No.2)

[2020] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI (No.2) [2020] FCCA 1502

Catchwords:
FAMILY LAW – Interim parenting – competing live with applications – allegations of self-harm and harm to the children – allegations of threats of harm – allegations of family violence – assessment of risk – parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 60CG

Cases cited:

Cimorelli & Wenlack [2020] FamCAFC 58

Eaby & Speelman [2015] FamCAFC 104

Goode v Goode (2007) 36 FamLR 422

M v M(1988) 166 CLR 69

Marvel v Marvel [2010] FamCAFC 101

Pinson & Pinson (No.2) [2020] FamCAFC 111

SS v AH [2010] FamCAFC 13

Salah& Salah [2016] FamCAFC 100

Applicant: MS PADANOWSKA

Respondent: MR PADANOWSKI

File Number: PAC 5760 of 2019

Judgment of: Judge Obradovic

Hearing date: 1 June 2020

Date of Last Submission: 1 June 2020

Delivered at: Parramatta

Delivered on: 10 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Fermanis

Solicitors for the Applicant: Philip Wilkins & Associates

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent:	Barry Nilsson Lawyers
Appearing for the Independent Children's Lawyer:	Ms Rutkowska
Solicitors for the Independent Children's Lawyer:	Ark Law Lawyers

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for X born in 2016 and Y born in 2018 (“the children”).  

2. The children shall live with the mother.

3. The children shall spend time with the father as follows:

   (a)Commencing 20 June 2020 each alternate weekend thereafter from 10am on Saturday until 5pm Sunday;

   (b)Commencing 17 June 2020 and each Wednesday thereafter from 12noon until 4pm;

   (c)On Orthodox Christmas from 4pm 7 January until 4pm 8 January;

   (d)On each of the children’s birthdays from 2pm until 6pm unless the children are otherwise with the father;

   (e)From 10am until 5pm on Father’s Day in the event the children are not otherwise spending time with the father; and

   (f)At any such other time as agreed between the parties.  

4. The children shall spend additional time with the mother as follows:

   (a)From 10am until 5pm on Mother’s Day;

   (b)On each of the children’s birthdays from 10am until 2pm unless the children are otherwise with the mother;  and

   (c)On Orthodox Christmas from 10am 6 January until 4pm 7 January.

5. To facilitate time between the children and each parent, changeover shall occur in the foyer at Suburb B Police Station.

IT IS NOTED that publication of this judgment under the pseudonym is Padanowska & Padanowski (No.2) 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

REASONS FOR JUDGMENT

Introduction

1. These interim proceedings relate to parenting orders in respect of the children X born in 2016 and Y born in 2018 (“the children”). 

2. The applicant in these proceedings is the mother, Ms Padanowska born in 1985 and the respondent is the father, Mr Padanowski born in 1980.

3. The primary issues in dispute between the parents are:

   a)Parental responsibility; and

   b)The living arrangements for the children with each of the parents.

The Conduct of Interim Parenting Proceedings

1. The central enquiry for the Court is to determine the outcome that will be best for the children the subject of these proceedings. The primary issue is whether the children are at an unacceptable risk of harm in the mother’s care and if so what, if any time, they should be spending with the mother. If the answer is that they are not, the issue then becomes a competing interim live with application, based on the determination of the relevant best interest considerations.[1]

   [1] see for example Lang & Partington [2017] FamCAFC 40 at [53]

2. In the recent Full Court decision in Pinson & Pinson (No.2)[2020][2], their Honours, with respect,  provided a useful summary of the relevant principles in respect of the conduct of interim parenting proceedings as follows:

   [2][2020] FamCAFC 111 at [34]-[37]

   “35. … [the] constraints on the ability to make determinations on contested facts are well-known. That is not to say however that if disputed facts raise serious concerns, those concerns should be ignored.

   36. In Salah & Salah (2016) FLC 93-713 (“Salah”) at [36]-[39], the Full Court said:

   36. It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68.... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   37. In Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   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.

   38. The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   39. In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   37. The Full Court in Cimorelli & Wenlack [2020] FamCAFC 58 (“Cimorelli”) said:

   80. In interim hearings, where the evidence remains untested, disputed facts cannot be the subject of definitive findings, but simply because material facts have been put in issue does not mean the contested evidence must or should be ignored, since such evidence may have a significant bearing upon the determination of orders which promote the children’s best interests ([Salah] at [35]-[45]; Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 at [18]- [19]). Despite the limitations which constrain findings at interim hearings, aside from those “couched with great circumspection”, certain provisions within Part VII of the Act direct judges to consider risks which are pertinent to the welfare of children and their carers (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3) (j), 60CC(3)(k) and 60CG). It would constitute an error of law to ignore the statutory mandate and, correctly, the primary judge did not ignore it.

   82. Naturally, the concept of risk encompasses the possibilityof harm, not just the probability of harm (M v M(1988) 166 CLR 69). The primary judge was conscious of the need to evaluate the available evidence to determine whether or not it capably vindicated the submissions made by both the father and the ICL that the mother poses a tangible risk of psychological harm to the children. Her Honour’s finding that the evidence did do so was appropriately circumspect and does not foreclose the issue being revisited at final trial, when the evidence will be properly tested. Her Honour was obliged to resolve the issue at an interlocutory stage, albeit provisionally rather than definitively, because it underpinned the parties’ contest over the children’s residence.”

Procedural History

1. The mother commenced proceedings pursuant to an Initiating Application filed on 11 November 2019. In addition to the interim parenting orders sought, which included the recovery of the children, the mother sought leave to be granted for the short listing of the application. A Registrar of the Federal Circuit Court granted that leave and made orders for substituted service.

2. The father filed his Response on 24 November 2019. The father sought competing ‘live with’ orders.

3. The matter was listed for first return before a Judge of the Federal Circuit Court of Australia on 25 November 2019 whereby the matter was adjourned for directions on 27 November 2019.

4. On 27 November 2019 interim orders were made, namely (amongst others) that:

   a)“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.”

   b)The children shall 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;

   c)The mother’s time shall be supervised;

   d)An Independent Children’s Lawyer be appointed to represent the children.  

5. On 10 December 2019 the mother filed an Application in a Case seeking that orders 9 and 11 of 27 November 2019 be discharged, the recovery of the children and that she have sole parental responsibility of both children.

6. The matter was next heard before the same Judge on 16 December 2019 for interim hearing however the matter was adjourned to 19 December 2019. On the next occasion, the orders of 27 November was varied such that the mother’s time was to commence at 11am and conclude at 4pm instead of 9am until 12noon on Fridays. The mother was also directed to attend upon a psychiatrist for treatment.

7. On 20 December 2019, the mother filed an appeal to the Full Court with respect to the interim orders made on 27 November 2019.

8. On 30 January 2020, the proceedings before this Court were adjourned to a later date, being 6 February 2020.

9. On 6 February 2020, the matter was again adjourned until 19 February 2020 and orders were made requesting the ICL’s appearance “as soon as possible”.

10. On 7 February 2020 and upon application made to the Court in Chambers by consent, leave was granted to the mother to provide copies of all materials filed in these proceedings to Forensic Psychiatrist Ms E for the purposes of preparing her report.

11. On 19 February 2020, the proceedings were further adjourned to consider the appointment of a Chapter 15 expert by consent.

12. On 3 March 2020, Dr H was appointed as a Chapter 15 expert, by consent and the matter was listed for directions on 27 May 2020.

13. On 9 March 2020, the mother filed an application to expedite her appeal.

14. On 17 March 2020, the mother filed an Application in a Case, amended the same day, seeking that her time with the children, pursuant to orders dated 27 November 2019 and 19 December 2019, be supervised by the maternal grandmother or Ms F.   The application was heard on 19 March 2020 and the mother’s time was suspended until 28 March 2020 due to the COVID-19 fourteen day isolation period being imposed on the maternal grandmother and after that to be supervised by the maternal grandmother. On the 28 March 2020, there was an incident between the parties at changeover resulting in the police being called.

15. The matter was urgently re-listed on 2 April 2020 and the orders in respect of changeover was varied such that changeover was now to occur at Suburb B Police Station.

16. On 8 April 2020, the father filed an Amended Response and an Application in a Case seeking property orders, which are not the subject to these interim proceedings.

17. On 23 April 2020, the Full Court of the Family Court heard  the mother’s appeal filed on 20 December 2019, made orders setting aside orders 9, 10 and 11, as subsequently varied on 19 December 2019, 19 March 2020 and 2 April 2020 from the next return date before this Court, being 27 May 2020. The matter was subsequently remitted for re-hearing before another Judge.

18. The matter came before this Judge in the duty week on 27 May 2020 and was then listed for an urgent interim hearing on 1 June 2020 via videoconferencing.

Undisputed Facts

1. The parties commenced their relationship in 2013.

2. The parties were married in 2014.

3. The first child of the parties’ relationship, X, was born in 2016. The second child of the parties’ relationship, Y was born in 2018.

The contested evidence

1. There are many disputed facts in these proceedings. Indeed, it appears that most of the facts which the parties consider to be relevant are disputed between them. There are a few key matters which have been identified on the evidence which are more important than the rest.

2. Each of the parties paints the other in a negative light.

3. In addition to what some hotly contested text messages purport to say, the father in his evidence states that the mother was

   “…constantly struggling with the kids. I observed Ms Padanowska to smack the children, threatened (sic) to harm them and she also threatened self- harm.”

4. The father in summary, asserts that the mother exhibited bizarre and abusive behaviours, that she was irrational, that she self-harmed, that she harmed the children and that she had been behaving in this manner for some time.

5. An example of some of the bizarre behaviours the father accords the mother is that in October 2019, as a consequence of the father suggesting that the mother enrol in a course, the mother woke the father up “at 2am to 4am every day thereafter to argue, spit on me and threaten me.” According to the father, once the mother enrolled in a course she had wanted to do (and not one that the father had suggested), “she mellowed down and was less erratic”. The father paid for the course on 3 October 2019.

6. Presumably as part of the same scenario, but perhaps not, as the father does not put the following alleged assault into any context, the father describes an incident said to have occurred on 1 October 2019. At this time it is alleged that he and Y were sleeping in one of the bedrooms, and “Between 4.00am and 4.30am, Ms Padanowska began to hit my head and face, and spat on me in the presence of Y who woke up from her yelling. I was cuddling him in my arms to settle during the ordeal and protecting him from the violence. I kept saying ‘Please stop you are going to hurt the baby!’ and ‘Please stop!’ I do not believe that Ms Padanowska cared whether or not she injured Y as she continued to assault me. At this point, the safety of Y was my main priority and I kept protecting him with my body, shielding him from Ms Padanowska as she continued to strike me with her fist.” There is no evidence of the father calling the police or any government authority, speaking to any family member about the incident, or speaking to the mother about the incident at any time following.

7. The father makes other allegations of violence against the mother.

The mother allegedly shakes Y

1. Early in his affidavit filed 30 May 2020, the father alleges that when Y was a baby at an unspecified date, on one occasion the mother “shook Y to stop him from crying…”. Later in that same affidavit the father says that in October 2018, he saw the mother handling Y awkwardly. “She then started shaking Y violently and did not seem to care. I was upset seeing her handle Y inappropriately and tried to calm Ms Padanowska down…” Presumably these are reference to the same event, as there is the same complaint by the father that the mother “threatened” to lock Y in a room and let him cry until he settled himself.

2. There is no evidence of any injury to Y, be it temporary or permanent, or any investigation as to any possible injury.

3. There is no evidence that the father reported this matter to any medical practitioner, the police or any other government agency. Indeed, there is no evidence of the father removing the baby from the mother’s arms or in any way checked that the baby was not hurt after he was allegedly violently shaken.

4. The lack of any such evidence is notable, particularly given that the matter is raised in the father’s case as a concern and presumably, to support the father’s case that the mother’s time with the children should be supervised.

5. There is also a second allegation of the mother shaking Y for about 10 seconds in October 2019, “as though she could shake him better.” This time the father says he took Y from the mother immediately.

The text messages where the mother allegedly threatens suicide and that she will hurt and has hurt X

1. One of the main contentions between the parties are a series of text messages which the father alleges the mother sent to the father, but which the mother denies sending.

2. The father annexes to his affidavit, extracts of text messages[3] which are said to be in the Language G. The messages appear to be in a Latin based script. They do not appear to be a complete record of text messages for any particular period. In fact, the father annexes to his affidavit what appears to be screen shots of select text messages attributed to the mother and himself. He then purports to translate some of the lines in the text messages but not all. The Court has not given any weight to the father’s translations of the said text messages.

   [3] Whether they are “text messages” in the sense of being SMS or MMS, or other ‘types’ of message is not important at present. It appears that some of the messages were apparently sent using an application called “Viber”. There is no difference drawn for the purpose of these reasons as to the form of message sent or which application was used.

3. The father’s translations also appear to be different at least in some part, to what are said to be translations by a NAATI level 3, translator. The translator is not on affidavit. Contrary to what one might expect, the translator does not identify the original (or copies of original) documents which were said to be translated. While there is some evidence in the father’s affidavit as to what he says the translator translated, and Counsel for the father attempted to assist the Court in identifying what he was instructed the translations were related to, there is still a distinct lack of evidence from the translator about this. On their face, the translations do not always appear to match what is said to be translated.[4]The translations must be treated with caution.

   [4] These matters were pointed out during argument.

4. The mother’s evidence on the other hand, of the assertion that she did not send the text messages but that it was the father, paints the father as manipulative, dishonest and coercive. It suggests that he is more than untruthful. There is at present a disagreement between the parties in respect of whether an independent forensic expert should be appointed to provide an opinion, in essence, as to origin of the text messages. It is a matter which the Court stood over for determination to a later date, if still pressed by the father.

5. There is of course, no room for speculation at present. The evidence remains untested. However, this does not mean that the evidence can be ignored.

6. Some of the messages, read literally, speak of a serious assault on a small child. Their literal meaning is also peculiar, perhaps as a result of such phrases having to be understood in a particular cultural aspect of the parents’ background. The mother is alleged to have said in text messages about the parties’ older child X, things such as:

   a)“He will remember this day. He was bashed like a donkey” (apparently sent at 11.31am on 12 April 2019.)[5]

   b)“I crippled the child” (apparently sent at 12.07 on 12 April 2019)[6]

   [5] Page 24 Exhibit 2

   [6] Page 28 Exhibit 2

1. The father does not, in his evidence, describe how he reacted when he received these text messages. He does not for example say “I was so concerned for X’s safety that I rushed home immediately” or “I was so concerned for X’s safety that I telephoned the police immediately.” The father says nothing of the sort in his evidence. He does not say that when he arrived home from work that afternoon he found the child bruised, hurt or in any way mistreated. Indeed his evidence is that in response to being told his older child was bashed like a donkey, two hours later, he sends the mother a text message which simply reads “How are the boys?”. The evidence (or lack of evidence) points to it being highly unlikely that the father was concerned for the children’s safety when he allegedly received those messages from the mother. No concluded view can be made at this point where the evidence remains untested. 

2. Some of the messages, read literally, speak of the mother having a troubled mind with serious thoughts of self-harm. One such example is said to have occurred on 12 April 2019[7] between the parties: 

   [7] Pages 27-29 Exhibit 2

   The mother:

   The dress it too tight for me.  (11.43am)

   I’ll kill myself; I swear. I can’t stand it any more. (11.44am)

   Come or I’ll do something. (11.45am)

   The father:

   Ms Padanowska, I’m in the middle of a meeting. (11.50am)

   The mother:

   Mr Padanowski, please I’m in agony. (11.50am)

   I’m very unwell. (11.51am)

   The father:

   If it’s too tight we will return it and tomorrow buy another one. (11.51am)

   The mother:

   Mr Padanowski, please, please. (11.51am)

   Please. (11.51am)

   I’ll call for help. I’m unwell. (12.07pm)

   I crippled the child. (12.07pm)

   This time I’ll definitely ask for psychiatric help. (12.09pm)

   The father:

   Ms Padanowska, don’t panic. Tomorrow we get something. I don’t know why you are upset. (12.12pm)

   The mother:

   No, I’m not well. I need help. (12.13pm)

   The father:

   Ms Padanowska, you should calm down and everything will be all right. Don’t panic. Tomorrow we will to Suburb J (sic), and you will buy another one. Why you worry and get upset. (12.14pm)

   Is it too small? And with … for tightening (unfinished – translator’s remark)

3. Context is not explained in the father’s evidence. On one reading of some of the messages, it appears the mother was expressing exasperation about not being able to fit into a dress. On another reading, it appears that the mother was feeling desperate with serious thoughts of self-harm perhaps over something as trivial as not being able to fit into a dress.

4. There appear to be possible inconsistencies between the text messages which appear at page 24 of Exhibit 2 and those which appear at pages 26-27 of Exhibit 2, all of which were said to have been sent on the same day[8] and which do not necessarily follow. The messages were said to be translations of what appears at pages 14 and 9 respectively of Exhibit 2. These apparent inconsistencies will no doubt be explored in cross-examination and be the subject of further evidence by the father.

   [8] As noted in paragraphs 27-28 above

5. The text messages collectively, could be understood to be threats of self-harm and threats of harm to the children. Another reading of them might be a call for help, or simply histrionics. Alternatively might just be made up, as the mother suggests. There are, no doubt, multiple possible explanations which may or may not be the subject of expert and other evidence as these proceedings continue. No findings about these matters in dispute can be made.

6. At present though, as earlier noted, the mother denies not only sending the messages but wanting to hurt herself or the children in the manner alleged.

7. The lack of action on behalf of the father is an important consideration in terms of assessing the alleged risks.

The mother allegedly drinks bleach

1. The father alleges that he is aware of the mother drinking or attempting to drink bleach (or chlorinated cleaning products) on two occasions in 2019.  One of those is alleged to have occurred on 18 November 2019.

2. According to the report annexed to the mother’s affidavit, the father told the staff at Suburb K Hospital on 19 November 2019 that the mother had attempted to drink cleaning chemicals. According to the report, the father told the hospital that the threat to drink cleaning fluid had happened about 3-4 months ago.

3. The father’s reaction to hearing the mother cough and appearing to vomit, after what he believes is the mother possibly ingesting a cleaning product containing bleach, is to do nothing.

4. According to his evidence, the father’s reaction to seeing the mother put a bottle of cleaning product to her mouth is to immediately take a photograph, and only then remove the bottle from the mother’s hand. It is not to take her immediately to hospital or to call an ambulance.

5. According to his evidence, the allegation is, like many of the allegations the father makes against the mother, an allegation of very dangerous but somewhat bizarre behaviour. If ultimately accepted, the mother’s behaviours are a risk not only to herself but also to her children. At present though, it is the risks associated with such alleged behaviours that needs to be assessed.

The mother allegedly stabs herself to the stomach with scissors

1. The father says that on the morning of 18 November 2019, the mother

   “… got scissors from the draw (sic) and started stabbing herself to her stomach…. This occurred in front of Y.”

2. According to the father’s evidence his reaction was not to remove the scissors from the mother’s hand, it was not to call an ambulance, it was not to call the police, nor was it not to immediately remove the children from the mother’s care, but instead it was to go to work leaving the children in the mother’s care. This was as “after a while” the mother had “calmed down” and “she appeared to be ok”.

3. On 19 November 2019, after the mother had called an ambulance to the parties’ home, the father upon receiving communication from the Police about the ambulance being called immediately left work and drove home. He did not tell the police or the ambulance or the hospital where the mother was taken about the fact that he had observed the mother “stabbing herself to her stomach” with a pair of scissors the day before. What the father said in his evidence is that he told a doctor that “Ms Padanowska has been telling me she is depressed that she tried to kill herself, that she was drinking domestos and bleach and also tried to kill herself with scissors”. The father’s sworn evidence is otherwise not that the mother tried to kill herself with scissors.

4. The report from the hospital[9], on the other hand, makes no mention of the father saying anything about the alleged attempt at self-harm with scissors on 18 November 2019 or at any other time. Indeed according to the hospital report, the father reported that “all these threats [being threatened suicide] happened about 3-4 months ago.” There is no injury recorded of any stab wounds by those examining the mother on 19 November 2019, or at any time subsequent.

   [9] Annexed to the mother’s affidavit. No tenders of any hospital  notes were made in the father’s case

5. It is considered to be likely that if the mother had stabbed herself to the stomach on 18 November 2019 that her injuries (or an indication that she had possibly suffered abdominal injuries) would have been observed by the ambulance officers or the hospital at which she was admitted. It is therefore considered to be improbable that the father observed the mother stabbing herself multiple times with a pair of scissors on 18 November 2019 as he has sworn to in his evidence.

6. If the father truly believed that the mother had tried to “kill herself with scissors” or otherwise self-harm by stabbing herself to the stomach only the day before and he left the children in the mother’s care in those circumstances, this raises significant concerns about his capacity to parent the children, to act protectively or indeed to put the children’s needs above his own. It also raises significant concerns that as a human being and concerned citizen, he would leave the mother after an apparent attempted suicide or attempt at self-harm to look after 2 little children without obtaining immediate help for her.

7. There is no evidence that he called the mother during the day on 18 November 2019 to check on her and the children, that he asked anyone to look in on the mother, or that he himself went home during the course of his work day to make sure the mother and the children were safe. There is no evidence that the father attempted to speak to the mother about his concerns that evening when he came home from work. There is only silence about those matters.

8. While the Court appreciates that these are interim proceedings, the father has filed a number of affidavits in the proceedings, although he only relied on the one filed 30 May 2020 at interim hearing. Even after the Court raised concerns about the father’s apparent lack of action in response to the mother’s alleged behaviours[10], the Court was not taken to any other evidence which might have alleviated the Court’s concerns in this regard.

   [10] Such a submission also having been made by learned Counsel for the mother

9. The mother denies that she tried to stab herself with a pair of scissors.

The father allegedly assaulting the mother on multiple occasions

1. The mother alleges that in 2018, whilst she was pregnant with the younger child, the parties had an argument about birthday invitations and later in the day while observing X crying in the father’s care, the mother enquired what was wrong. In response to this the father pushed the mother to the floor and kicked her to the stomach. The mother scrambled for her phone to call the Police but the father grabbed the phone first and allegedly smashed it with a hammer. The mother later sent a message to her brother over the internet, and her brother alerted the Police who later attended the parties’ home. The father admitted to damaging the mother’s phone although his description of the incident is vastly different to that of the mother. The father was arrested[11] and the Police applied for and obtained an Apprehended Domestic Violence Order which remained in place for 12 months.

   [11] Exhibit 1 records an offence for 9 June 2018 of “Destroy or Damage Property (DV)” and a sentence of s10 dismissal

2. Exhibit 1 refers to 3 other alleged incidents of family violence. They are said to have occurred on 4 November 2019, 13 November 2019 and 19 November 2019.

3. The mother describes similar incidents in her affidavit, albeit the incident ascribed to 4 November 2019 in Exhibit 1 is said by the mother to have occurred approximately 3 weeks prior to separation, which would put it in about late October 2019.

4. In summary, the mother alleges that:

   a)On or about 4 November 2019 (or about 3 weeks prior to 19 November 2019) following an argument between the parties in respect of a family holiday, the father called the mother fat, ugly and “a hippo”. The mother responded with “no, your Mother is a hippo” at which point the father came at her aggressively and began to punch her to the head with a closed fist. After this incident she observed bruising to her face and eye.

   b)On 13 November 2019, the father came home and asked whether the mother had received the divorce papers and that she needed to take her wedding ring off. As she could not do so, the father began screaming and demanded that she use plyers to take the ring off. As she could not take the ring off, the father then pushed the mother to the floor, grabbed her by the hair and dragged her into the lounge room. He pulled her by the head by the hair in an attempt to smack it into the glass coffee table. Out of fear the mother urinated on herself.

   c)On 19 November 2019, after the mother enquired about a family holiday, the father punched her with a closed fist to the back of the head while she was feeding Y in his high chair. After the punch, the mother began to feel dizzy but continued caring for the children while the father left home to go to work. After half an hour the mother began suffering intense chest pain, and attempted calling the father to take her to the hospital. He did not answer and she called an ambulance. The mother was taken to Suburb B Hospital. She was assessed for the chest pain and later, after the father advised the hospital that the mother had threatened self-harm in the past, the hospital conduced a mental health assessment.

5. Part of Exhibit 2 are photographs which are said to depict bruising to the mother’s face which the mother says are the result of punches to her face by the father. It appears that it was upon being provided with these photographs and a statement by the mother, that the police decided to apply for an Apprehended Domestic Violence Order for the protection of the mother and to charge the father with common assault.

6. The father says that any bruising to the mother’s face at that time is the result of the mother’s own hand, that is, the mother hit herself so hard as to cause bruising to her face. The father denies ever assaulting the mother.

7. The criminal proceedings were before Suburb B Local Court last on 23 March 2020 and have been adjourned for mention in August 2020. No hearing dates have been given.

8. The above mentioned allegations are not the only allegations of family violence made by the mother. The mother asserts that the father would regularly threaten her with sending her back to Country G without the children. The mother also makes allegations of financial control.

The mother’s mental health

1. The father asserts that the mother appeared to have symptoms of depression and post-traumatic stress disorder after Y’s birth. The father is a professional with no apparent qualifications in psychology or psychiatry. It is unclear on what basis he has identified symptoms of mental health issues in the mother.

2. The father says that

   “In late October 2019, Ms Padanowska requested that I take time from work to care for her and the children as she expressed that she ‘could not look after the kids because of depression.’ Ms Padanowska cried uncontrollably whilst I tried to assure her that we would get her help and go to the doctor. Ms Padanowska cried in the presence of the children. When Ms Padanowska was like this, it was incredibly difficult to communicate.”

3. The evidence does not show that the father took time off in October 2019 to assist the mother in circumstances where she apparently indicated to him that she was struggling with the care of the children and where he observed her to be crying uncontrollably.

4. Even just immediately before apparently observing the mother to stab herself to her stomach with scissors on 18 November 2019, when she asked the father to take time off work as she could not look after the children due to being depressed, the father did not took time off work, he did not call an ambulance or nor did he take the mother to a doctor.

5. There is no evidence that the father has ever taken the mother to a medical practitioner, called an ambulance or insisted[12] that she receive treatment in respect of her suspected mental health issues.

   [12] The best that he has apparently done is to suggest that she should go to a doctor

6. The mother’s evidence is that the father would taunt her with suggestions that she is mentally ill, or that he will say that she is mentally ill, and that he will send her back to Country G while retaining the children with him in Australia.

7. As noted earlier the mother was conveyed by ambulance to hospital on 19 November 2019. She was released the same day. Annexed to her affidavit is a Preliminary Report dated 21 November 2019 in respect of a Mental Health Assessment carried out at Suburb B Hospital. The report indicates that the mother was referred for a mental health assessment as the father informed staff that she had threatened suicide and is depressed. The mother was interviewed separately. On interview, the mother apparently said that the father wants to divorce her and that he has been saying that he will take the children away. The mother said that the father had previously abused her while pregnant and that he had broken her phone such that she could not call the police.

8. Annexed to the mother’s affidavit was a letter from Dr L, psychiatrist to Dr M dated 28 November 2019, reporting on a referral and a report prepared presumably for the purposes of the proceedings addressed to the mother’s solicitors, dated 16 December 2019.  Dr L’s opinion is as follows:

   “From the information obtained on this cross-sectional interview and limited collateral history the likely diagnosis is Adjustment disorder with anxious mood, Acute stress disorder on the background of Cluster B personality traits, mainly impulsive. The differential diagnosis includes the Post-traumatic stress disorder. The further assessment and collateral history will be required in order to clarify the diagnosis.”

9. Dr L goes on to say that he is not aware of any history suggestive of the mother being physically abusive or acting inappropriately towards the children, and that there was no previous history of self-harming behaviours or suicidal attempts. Based on the information provided by the mother (which included a soft copy of the documents filed in the proceedings to date) Dr L formed the opinion that there are no significant psychological issues that will affect the safety of the children. Given the limits identified by Dr L, himself, the report is treated with caution.  

The evidence of Ms E

1. Ms E is a clinical and forensic psychologist. The mother was referred to her by Mr N, Psychologist, for a formal mental health assessment. The mother’s solicitors, by letter dated 13 February 2020, requested a report from Ms E addressing the following:

   a)Psychological or psychiatric issues affecting the mother, if any, and if relevant the impact of such issues on parenting;

   b)Whether any diagnosis of any psychological or psychiatric issue affecting the mother would pose a risk to the children;

   c)Any recommendation for ongoing treatment if required;

   d)Comment on the text messages allegedly sent between the mother and the father and any comment upon the mother’s explanation about those text messages, noting that the court has made a finding that the mother sent the messages but she continues to deny this; and

   e)Any other matter you consider relevant.

2. The letter was of course, written prior to the determination of the appeal, as was the report. The finding as to the authorship of the text messages has been set aside by the Full Court. For that reason at least, Ms E’s opinion about the text messages is not relevant for the purposes of the interim hearing.

3. The report as a whole must be treated with caution. Whilst Ms E was provided with four affidavits filed by the father in the proceedings, she did not have the opportunity of interviewing the father. Her report is based in part on the material she was provided with an in part on her interview with the mother. How much weight she placed on various matters asserted by either or both of the parties is unknown. The evidence remains untested and many of the facts assumed for the purposes of the opinion provided by Ms E are yet to be proven. Notwithstanding the difficulties identified, the opinions expressed in the report are relevant.

4. Ms E is of the opinion that the mother is suffering from trauma as a result of domestic violence suffered during the parties’ marriage and the threats to her visa and relationship with her children. Ms E is of the opinion that it is likely that the mother suffers from Post-Traumatic Stress Disorder and Generalised Anxiety Disorder, which is common for victims of domestic violence. Ms E disagrees that the mother is suffering from an Adjustment Disorder, amongst other things, as an adjustment disorder stressor is classically short term.

5. Ms E is of the opinion that the risk of violence to others in individuals who present similar to the mother is considered low. It was recommended that the mother will require regular counselling to monitor and treat her trauma. There is no evidence that the mother has engaged in such counselling. Ms E is of the view that the mother may have minimised her distress due to fear of losing contact with her children.

1. Ms E opined that “there was no evidence to suggest by O Counselling nor Psychiatrist Dr L, that there was a risk of harm to Ms Padanowska’s children nor that she suffers from mental health concerns.”

Apparent Inconsistencies in the accounts attributed to the mother

1. The hospital report from Suburb B Hospital reads as follows:

   “States her husband want (sic) to divorce her, he has been threatening separation for the past 3 weeks. He has also been saying that he want (sic) to take the children away.

   Reports he has previously physically abused her while she was pregnant, broke her phone such that she was not able to call Police.

   Ms Padanowska says her husband has been telling everyone that she is not a good mother and does not look after her household well. Admits to threatening to kill herself sometime last week, says she did not mean it. Verbalised these threats as her husband continously (sic) asked for a divorce.

   Ms Padanowska says she loves her children and will never harm herself.

   Today Ms Padanowska was angered by the fact that Mr Padanowski (husband) came to the hospital he informed her that he had left the kids in the care of his parents and that 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 hospital staff intervened. The staff contacted the DV helpline and Police were informed. Pt claims she was told that she was not going to see her children today.

   Ms Padanowska says since her marriage she migrated to Australia. She 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 their children.”

2. There is not a single allegation of punching or any physical violence as alleged in her affidavit in respect of November 2019 and indeed, the alleged punch to the back of the head the morning of her admission to the hospital. The mother said in her affidavit filed 28 May 2020, that she did not advise the hospital about these matters. It is not surprising therefore that there is no record of them being mentioned.

3. The mother reportedly told the hospital that she has nil friends, yet at the time of her appointment with Dr L on 28 November 2019, she was living at her friend’s house and Ms F’s sworn evidence is that she is a friend of the mother’s.

4. To Dr L the mother reported that:

   a)the father had become physically aggressive since she became pregnant with their second child. That she had reported him to the police and an AVO was issued against him.

   b)the arguments between her and the father escalated in recent months.

   c)the father had told the staff at Suburb B Hospital that the mother has an intention to kill her younger son and herself by drinking Domestos;

   d)she has never expressed thoughts of harming herself or her children;

   e)she has never attempted to drink Domestos;

5. There is no reported disclosure of the particular assaults said to have occurred on 4 November, 13 November and 19 November 2019.   

6. Counsel for the father pointed to other apparent inconsistencies in the accounts attributed to the mother in the documents before the Court. That evidence has not been tested, and at its highest, it is hearsay and opinion evidence. However, the apparent inconsistencies have been taken into account when assessing risk.

Assessing the risks to the children

1. Not all of the allegations made in the parties’ evidence are the subject of analysis or mention in these reasons. That does not mean that they have not been considered. Consideration does not mean discussion.

2. In assessing the risks identified in the parties’ cases, the court must consider the possibility of harm and not just the probability of harm. This means identifying the possible harm that might come to these children and assessing the probability of such harm coming to these children.

3. These are of course factual disputes to be determined at final hearing after the evidence has been tested. The Court simply makes these observations about the veracity of the evidence without making any findings of fact one way or the other, all the while being aware of the gravity of the matters alleged[13].

   [13] See in general s140 Evidence Act 1995 (Cth), but in particular s140(2)(c), in respect of the onus of proof in civil cases which is applicable to findings at final hearing

4. With these tasks in mind and for reasons explained earlier, the risks to the children of:

   a)the mother harming herself in the manner alleged or similar including in front of one or both of the children; and

   b)the mother physically assaulting or harming the children in the manner alleged or similar;

   are assessed as low and are not unacceptable.

5. Furthermore, in line with the submissions made on behalf of the mother, the Court does not, at this interim stage of the proceedings, assess the risks the father poses to the children as being unacceptable. This does not mean that the very serious allegations of family violence made by the mother have been dismissed.

6. Notwithstanding the submission made on behalf of the mother at interim hearing that the father does not pose an unacceptable risk of harm to the children, there is still a significant risk of harm if what the mother alleges is correct. If what the mother alleges is correct the children have been exposed to very serious family violence. There is no evidence that the children have been exposed to similar events since the parties’ separated, except perhaps to the extent that their removal from the mother’s care is said to be an exercise of coercive and controlling behaviour by the father.  

7. There does not appear to be a suggestion in the mother’s case that the children themselves have been subjected to physical violence at the hands of the father.

8. This assessment is limited by the curtailed nature of the interim hearing that was conducted. It is not a final assessment of risk.

9. On the basis of the above assessments, neither parent’s time with the children is to be supervised on an interim basis.

Where should the children live?

1. The father strongly urges upon the Court that the children should remain living with the father as they have been since November 2019. He submits that they are settled in his care and that he has been their primary carer for 6 months, which in the lives of these young children, is relatively speaking a long time.

2. The reason the children have been living with the father since November 2019 is that firstly the father removed the children from the former matrimonial home when he left on or about 19 November 2019, and secondly that this Court ordered that they do so on 27 November 2019. Those orders are the subject of a Full Court decision on appeal and the orders were set aside as of 27 May 2020. Status quo per se, is irrelevant.

3. The parties disagree about the children’s primary care during the period of cohabitation:

   a)The father asserts that he has been the children’s primary carer for the last six months and that he was very involved in the children’s care prior to separation, albeit he worked on a full-time basis. The father says that he was responsible for most, if not all of the care for the children, and that the mother was in effect a disinterested mother, who “struggled”. However, the father, for the most part, refers to his care of the children as being assistance to the mother.[14]

   b)The mother asserts that she was the children’s primary carer, although the father was involved in the children’s care during periods of time when he was not at work. The mother says that she was responsible for the vast majority of the care for the children, as she was with them for most of the day. The mother also says that she breast-fed the children for a number of months after their birth.

   [14] See Father’s Affidavit filed 30 May 2020 at paragraphs 9 and 10 for example, where the father states “I continued to assist during the night… to provide assistance to Ms Padanowska … I helped out Ms Padanowska with X…” and “I took leave from my employment for 2.5months to assist Ms Padanowska with the care of Y and X”.

4. The children appear to have a warm and loving relationship with each of their parents. The mother alleges that since November 2019, the children are clingy and that they appear to have regressed in certain respects.

5. It is a fact that the children have been living with the father since 19 November 2019. It is a fact that the mother was a stay at home mother prior to the parties’ separation and that the father was employed on a full-time basis. It is a fact that since separation the children have spent limited time with the mother and that any time which they have spent with her has been supervised. Since separation, there have been periods of time when the children did not spend any time with the mother or where it appears that the father has unilaterally decided not to facilitate time between the children and the mother.

6. The mother seeks that the children be returned to her primary care and she has raised concerns about the children’s emotional wellbeing consequent upon being separated from her for extended periods of time.

7. The mother presently lives in the former matrimonial home in Suburb D. She has a limited support network.

8. The maternal grandmother is presently in Australia. The evidence is that her visa will expire in mid-June, although it was submitted by learned Counsel for the mother, that the visa has been extended for a further three months.

9. The mother does appear to have at least one close and reliable friend in Ms F, the person who had previously supervised the children’s time with the mother and who the father proposes continue to supervise the children’s time with the mother.

10. The mother has neighbours who appear to provide some support. Two of her neighbours are witnesses in her case. Any support which the neighbourhood may offer is likely to be of a limited duration, given that both parties have applied to the Court for the former matrimonial home where the mother resides, to be sold on an interim basis.

11. The father presently lives in a two bedroom unit in Suburb Q. His parents live in the Region R area, which is where he and the children lived post separation. It is not known when the father moved into the unit in Suburb Q.

12. There is conflicting evidence as to possible issues at changeovers in March 2020. Allegations and counter-allegations have been made with the evidence being filed in support of the various allegations. Ultimately, these may be matters for final hearing.

13. The father presently works full time. Due to the COVID-19 pandemic, the father says that he is working from home. Previously, the father says that he was working from home two days per week, namely Mondays and Thursdays. It is unclear when this was said to be occurring, as the evidence seems to suggest that while the parties were together the father worked away from the home 5 days per week. The father says that his employment is flexible and that his parents assist him with the care of the children. The paternal parents live some distance away from the father’s residence and about 1.5 to 2 hours’ drive from the mother’s residence.

14. The mother does not drive nor does she have the use of a motor vehicle if she were to qualify for a driver’s licence.

15. Counsel for the father submitted that the father’s lack of action in the past in respect of the mother’s behaviours giving rise to risks to the children is difficult to reconcile and that the father can be criticised for his lack of action historically. However, it was submitted that the father is now eliminating those risks by virtue of the orders he seeks and he has been doing so since 19 November 2019 when he removed the children from the former matrimonial home and the mother’s care. 

16. Certainly, the father’s actions in removing the children from the former matrimonial home on 19 November 2019, not facilitating any time until orders were made and otherwise limiting the children’s time with the mother, might be a sign of him acting protectively. On the other hand, it might also be a sign of him acting coercively and manipulatively, and not in the children’s best interest.

17. Dr H has been retained by the parties for the purposes of preparing an expert report in these proceedings. Dr H has not been asked to diagnose either party in respect of any mental health issues they may suffer from. It may be that Dr H will rely on the diagnosis of other medical practitioners in respect of the mother’s mental health or he may not. These matters remain to be seen once the report is completed. Dr H has been asked to provide an opinion, inter alia, about how any mental health issues might affect the mother’s capacity to parent the children.

18. It was submitted on behalf of the father that the Court ought to leave the children with the father until such time as the report of Dr H was made available. The interviews are due to occur in late June and it is anticipated that the report will be released by about mid-late July. Earlier interviews booked for May 2020 appear not to have occurred due to a lack of available funding for the report. Even if the report was ready by mid-late July 2020, the difficulty is that the evidence will remain untested until the final hearing in this matter, including the opinions expressed in any expert report. Even if the matter was expedited (which is still an application to be formally made and determined) it would unlikely have a final determination before the end of 2020. If and when the report becomes available, and depending on the opinions expressed in the report, there would be no bar to the parties bringing appropriate applications to the Court. Risk on the current evidence has been assessed.

19. There is no suggestion on the evidence post separation that the mother has not been able to appropriately care for the children. The evidence relating to the supervision of the mother’s time with the children points to a capacity to meet the children’s needs without any assistance or intervention by the supervisors. There is no evidence that the mother has not coped with caring for the children or that she has acted in a way which is likely to cause them harm.

20. The mother raises concerns about the father’s capacity to meet the children’s psychological needs, not only in terms of his actions in withholding the children from the mother post separation, but also in terms of the breaks in time the children have had with the mother post separation with no offer of make-up time or alternative arrangements.

21. The mother appears to have engaged with several mental health professionals or supports since separation. Even if these engagements have been largely for the purpose of obtaining reports for the proceedings, there is still evidence of some engagement by mother.

22. The children have lived in different residences post their parents’ separation, firstly living in the paternal grandparent’s residence with the father and his parents, and now in a 2 bedroom unit with the father. It is difficult to see what stability of care has been provided to them in the last six months. The mother seeks that the children reside with her in the former matrimonial home. While, as noted earlier, the parties both make an application that that dwelling should be sold at an interim stage of the proceedings, if and when such a sale might be affected is not known. As such, there will be at least a period of many weeks if not months, that the children could be living in their home with the mother.

23. The mother is able to care for the children on a full-time basis. The father works full-time, albeit presently from home. Working from home does not mean not working. It must mean an intellectual and physical engagement required by the apparent senior role the father occupies as a professional.

24. The children are very young children, who had prior to November 2019, had the benefit of day to day care by their mother. That relationship has been facilitated to a very limited extent post separation. There could possibly be significant and long term risks to the children if their relationship with the mother is not facilitated, encouraged or promoted.

25. Overall it is assessed, at this stage of the proceedings and on the evidence presently before the Court, that the children’s best interests are served by an order that they live with the mother and spend time with the father in accordance with the mother’s application.

Parental responsibility

1. At interim hearing, the presumption of equal shared parental responsibility is rebutted where it would be appropriate in the circumstances for the presumption to be applied when making a parenting order. There is significant parental conflict between the parents, such that an order for equal shared parental responsibility is contraindicated at this stage.

2. On the evidence and at this interim stage, the Court finds that the presumption of equal shared parental responsibility has been rebutted. An order for the mother to have sole parental responsibility is appropriate at this stage.

Conclusion

1. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 10 June 2020