Palmer and Kerr
[2016] FCCA 657
•31 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALMER & KERR | [2016] FCCA 657 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – two children aged 10 and 8 years – need to protect children from physical and psychological harm – whether father should spend any time with children – whether evidence sufficient to warrant an order that father should spend no time with children – “cautious robustness” approach. |
| Legislation: Evidence Act 1995 (Cth), s.56 Family Law Act 1975 (Cth), ss.10G, 13C, 60B, 60CA, 60CC, 62G, 68B, 69ZT |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Sandford & Cobb [2016] FamCA 11 |
| Applicant: | MR PALMER |
| Respondent: | MS KERR |
| File Number: | SYC 677 of 2015 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 March 2016 |
| Date of Last Submission: | 11 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Steggall |
| Solicitors for the Applicant: | Wood Marshall Williams |
| Respondent: | In person |
| Independent Children's Lawyer: | Mr Meehan |
| Solicitors for the Independent Children's Lawyer: | JPM Legal |
ORDERS
UNTIL FURTHER ORDER
In accordance with the provisions of section 13C of the Family Law Act 1975 the Applicant and the Respondent and the children X born (omitted) 2005 and Y born (omitted) 2007 are to attend family counselling on a fortnightly basis commencing as soon as possible from the date of these Orders at an organisation agreed between the parties or failing agreement at an organisation nominated by Relationships Australia in such manner as recommended by the organisation and the cost of the counselling is to be met by the parties in equal shares.
After the children X and Y have attended six (6) sessions of counselling a preliminary report is to be provided by the counsellor to the Court and the parties are to have liberty to relist the matter on seven (7) days’ notice if the report raises serious concerns about the risk of harm to either or both of the children if supervised time with the Applicant father is to commence in accordance with Order (3) following.
Upon the children X and Y attending no fewer than six (6) counselling sessions the children are to spend supervised time with the Father every alternate Sunday from 1:00pm to 4:00pm at a supervised contact centre to be agreed by the Father and Mother and failing agreement the closest centre with availability for a period of three (3) months (hereinafter referred to as “the short visit period”).
On completion of the short visit period the children are to spend time with the Father unsupervised from 10:00am to 4:00pm on alternating Sundays (hereinafter referred to as “the day visits period”) and for the purpose of this order the Father is to be responsible for collecting the children from and returning the children to the Mother’s home at the commencement of and the conclusion of his time with the children.
The Mother is to undertake a ‘Parenting after Separation’ course as nominated by the Independent Children’s Lawyer within three (3) months of the date of these Orders.
Upon commencement of the day visits period the Father is to speak to the children over the telephone or via Skype on Tuesdays and Thursdays of each week between the hours of 6:00pm and 8:00pm and for the purpose of this Order the Mother must:
(a)make her mobile telephone available for the Father to contact the children;
(b)keep the Father informed of her current mobile telephone number;
(c)use her best endeavours to be in a location where there is mobile telephone reception;
(d)ensure her mobile telephone account is not disconnected; and
(e)use her best endeavours to have the children in a quiet location when speaking with the father and afford the children privacy when speaking to the father.
The Father and the Mother must advise each other as soon as practicable of:
(a)Either or both of the children being admitted to hospital whilst in their respective care;
(b)Any medical problems or illnesses suffered by either or both of the children whilst in their respective care;
(c)Any medication that has been prescribed for either or both of the children; and
(d)Any other matter relevant to the welfare of the children.
For the purpose of communicating regarding the children the parties must communicate by telephone, text massage or email in a polite and civil manner.
The Applicant and the Respondent are restrained from making critical or derogatory remarks about each other or members of their extended families in the presence or hearing of the children or either of them.
The Applicant and the Respondent must advise each other and keep each other advised of their current address and contact telephone number including landline and mobile telephone numbers and advise each other of any changes to those details within twenty-four (24) hours of any such change occurring.
In the event that the parties cannot come to an agreement regarding a major long term issue regarding the children or either of them they must do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.
The names of the children X born (omitted) 2005 (a male) and Y born (omitted) 2007 (a female) are to be removed from the Family Law Watch List maintained by the Australian Federal Police forthwith.
All other interim Orders sought in the Response filed on 2 June 2015 are dismissed.
The Applicant and the Respondent and the children are to attend upon a Family Consultant at a time, date and place nominated by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.
The Application is transferred to the docket of Judge Boyle to be listed for mention in Court 3B at a time and on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Palmer & Kerr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 677 of 2015
| MR PALMER |
Applicant
And
| MS KERR |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of two young children, X and Y, for interim parenting orders so that he may spend some time with them. He has not spent any time with the children since May 2013, because the Mother has refused to allow him to do so. She asserts that any contact with the children will be harmful to them, due to what she claims are the Father’s sociopathy and borderline personality disorder.
It is the Mother’s case that the children should have no contact with their father.
The Independent Children’s Lawyer supports the Mother’s position to some extent, submitting that interim time with the Father may not be appropriate and that there is a need for therapeutic intervention before the children spend time with him.
Background
The Father was born on (omitted) 1969. He is 46 years of age.
The Mother was born on (omitted) 1972. She is 43 years of age.
There are two children of the marriage, both of whom live with the mother.
X was born on (omitted) 2005 and is now 10 years of age.
Y was born (omitted) 2007 and is now aged 8 years.
The parties commenced their relationship in 1991. They started living together in 1997 and were married on (omitted) 1997. They separated on 1st April 2013 and were divorced on 9th November 2014.[1]
[1] Affidavit of Mr Palmer 9.11.2015 at paragraphs [2]-[3]
The Father re-partnered with a lady named Ms M in about (omitted) 2014 and they commenced living together in (omitted) 2014. Ms M does not have any children.[2]
[2] Ibid at [8]
The Father saw the children at the Mother’s home shortly after the parties separated in April 2013. He has not seen the children since then.
The Father commenced proceedings by filing an Application for parenting orders and a supporting affidavit on 6th February 2015. The Application was returnable on 4th May 2015. On that date the parties were directed to attend a Child Dispute Conference and an order was made under s. 68L of the Family Law Act 1975 (Cth) that the children’s interests should be independently represented by a lawyer.
The parties attended a Child Dispute Conference on 7th May 2015.
The Mother filed a Response along with a Notice of Risk and a supporting affidavit on 2nd June 2015.
The parties and the children attended a Child Inclusive Conference on 20th August 2015.
Evidence
The Father relied on the following documents:
a)Case Outline Document;
b)Application filed on 6th February 2015;
c)his affidavit sworn 9th November 2015;
d)the affidavit of Ms M sworn 4th November 2015;
e)Child Dispute Conference Memorandum to Court dated 7th May 2015; and
f)Child Inclusive Conference Memorandum to Court dated 20th August 2015.
The Mother relied on the following documents:
a)Case Outline Document;
b)her affidavit of 1st June 2015;
c)her affidavit of 5th November 2015
d)the affidavit of Mr E sworn 26th May 2015;
e)the affidavit of Ms W sworn 27th May 2015;
f)the affidavit of Ms K sworn 27th May 2015;
g)the affidavit of Mr K sworn 25th May 2015;
h)Child Dispute Conference Memorandum dated 7th May 2015; and
i)Child Inclusive Conference Memorandum dated 20th August 2015.
The Independent Children’s Lawyer filed a Case Outline Document. In that document, he indicated that he relied on the following documents:
a)Child Dispute Conference Memorandum dated 7th May 2015; and
b)Child Inclusive Conference Memorandum dated 20th August 2015.
Issues in Dispute
Counsel for the father, Ms Steggall, identified the issues as follows:
1. Parental responsibility for X (born (omitted) 2005) and Y (born (omitted) 2007)(the children);
2. What orders should be made to assist the children in re-establishing a relationship with the father;
3. What time the children should spend with the father and when it should commence;
4. Any mental health concerns in respect of the parties.
5. Whether orders should be made for the mother to attend counselling and/or a parenting after separation course.
6. Communication between the parties in respect to the children.
In her Case Outline, under the heading “Issues in dispute”, the Mother states:
The Applicant wishes to have contact with the children and share responsibility of the children. I, the Respondent, do not believe that it is safe for the children to have any contact with the Applicant due to the Applicant’s abuse and violent behaviour towards the children and their mother. The Applicant has demonstrated that he does not have the capacity to care for the children and make short-term and long-term decisions for the children. It is therefore, in the best interests of the children, for the children to have no contact with the Applicant, and I request that I have sole parenting[3] responsibility of the children.
[3] sic
The Independent Children’s Lawyer, in his Case Outline Document, sees the issues in dispute as:
1. Parental Responsibility of the children.
2. What time the children should spend with the father, if any.
3. Should the father’s time with the children be supervised, and if so, what would be the terms of the supervision.
The Parties’ Proposals
The Father proposes orders that are set out in a document entitled “Father’s Proposed Short Minute of Order”, annexed to his Case Outline Document. In summary, the interim orders that he seeks are that:
a)The parties should have equal shared parental responsibility for the children;
b)The parties and the children should attend family counselling on a fortnightly basis at an agreed organisation or, in default of agreement, Relationships Australia;
c)After the children have attended 6 sessions of counselling, a preliminary report should be provided to the Court and the parties should have liberty to re-list the matter if the report raises serious concerns about risk of harm to the children if supervised time with the Father commences;
d)After the children have attended no fewer than 6 counselling sessions, they should spend supervised time with the Father every alternate Sunday from 1:00pm to 4:00pm at a supervised contact centre;
e)On completion of those supervised times, the children should spend unsupervised time with the Father from 10:00am to 4:00pm on alternate Sundays;
f)The Mother should undertake a parenting after separation course within three months;
g)Upon commencement of the day visits the Father should speak to the children over the telephone or via skype between 6:00pm and 8:00pm on Tuesdays and Thursdays;
h)The parties should keep each other advised of the children being admitted to hospital and other medical matters or matters relevant to the children’s welfare;
i)The parties should communicate by telephone, text message or email;
j)The parties should refrain from making critical or derogatory remarks about each other in the presence or hearing of the children;
k)The parties should keep each other advised of their current addresses and telephone numbers;
l)If the parties cannot come to an agreement about a major long term issue regarding the children they will participate in family dispute resolution with a person authorised under s.10G of the Family Law Act 1975; and
m)The day visits continue until the matter is re-listed for further assessment of the parenting arrangements.
The Mother’s proposed orders are set out in the document entitled “Minutes of Orders” annexed to her Case Outline. Essentially, the mother seeks interim orders providing that:
1.That the status quo remain, that the mother has sole responsibility of caring for the children, and in making all short-term and long-term decisions, and the father to continue to pay child support as assessed, in a timely manner.
2. The children live with the mother.
3. The children have no contact with the father.
4.The father attend not one, but several sessions of a psychiatric assessment at a recognised psychiatric facility that specialises in anti-social personality disorder and borderline personality disorder to determine his condition, at his cost. If he is diagnosed with the condition as stated or any other mental illness, that he seeks treatment for his condition, and undergoes extensive ongoing treatment to recover fully before he has any contact with the children.
5.An Apprehensive[4] Violence Order be made against the Applicant for the children and the Respondent.
6.The children shall remain on the Airport Watchlist, until further order is made.
7.That all communication between the Applicant and the Respondent is to be made through his lawyer, Ms Rebecca Harper.
[4] sic
The Independent Children’s Lawyer proposes that the Court should make interim orders as set out in the document entitled “Minutes of Orders” annexed to his Case Outline Document. Those orders are as follows:
1. That the Applicant and the Respondent have equal shared parental responsibility for the children of the marriage, namely X born (omitted) 2005 and Y born (omitted) 2007 (“the children”) for making decisions about the long term care, welfare and development of the children.
2. The children live with the Respondent.
3.That there is no Order in respect of the time that the children spend with the Applicant.
4.Pursuant to s13C of Family Law Act 1975, the parties attend family counselling to help them resolve their issues relating to the children and further:
a. The family counselling occur at an organisation as agreed between the parties, or in default of an agreement within seven days an organisation nominated by Relationships Australia, and
b. The parties attend at the organisation at such times as requested by the organisation.
c. The cost of such counselling shall be met by the Applicant.
It should be noted that Ms Steggall for the Father told the Court, after a question from the Bench, that the order for family counselling sought by her client is also in accordance with s.13C of the Family Law Act.
Agreed or uncontested relevant facts
The children have lived with the Mother since the parties separated in April 2013. The Father last saw the children shortly after that time.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act that are to be found in Part VII. In particular, the Court should have regard to the provisions of:
a)Section 68B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or the children, in this case) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the child’s parents should have equal shared parental responsibility for the child.
All of those matters have been considered, so far as they are relevant.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court in Goode & Goode[5] held that the Court at first instance should consider the matters set out in s.60CC that are relevant and, if possible, make findings about them, noting that:
(in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[6]
[5] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[6] (2006) 36 Fam LR 422 at 445 [82]
In this case, the issues really concern the two primary considerations that are set out in subsection 60CC(2), which provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) is also relevant, providing as it does:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Clearly, in this case, the best interests of the children require a balancing between the benefit to the children of having a meaningful relationship with both parents on the one hand and, on the other, the need to protect the children from physical or psychological harm from abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.
First of all, it is clear that the children have no relationship with their father at all and, if their mother has her way, it is likely that they will never have a relationship with him, meaningful or otherwise.
What is required is for the Court to examine the evidence in support of the Mother’s assertion that it is not safe for the children to have any contact with their father, due to “the Applicant’s abuse and violent behaviour towards the children and their mother”.[7]
[7] Respondent’s Case Outline, page 1
The Mother’s evidence is contained in the following affidavits:
a)the Mother’s affidavit sworn 5th November 2015;
b)the affidavit of the Mother’s father, Mr H, sworn or affirmed on 26th May 2015;
c)the affidavit of the Mother’s brother, Mr K, sworn or affirmed on 25th May 2015;
d)the affidavit of the Mother’s sister, Ms K, affirmed on 27th May 2015; and
e)the affidavit of the Mother’s mother, Ms W, sworn on 1st June 2015.
The Mother also relies on two articles downloaded from the Internet:
a)“Sociopath Fathers: The ‘Charming’ Killers, by one Charles Pragnell, dated1 July 2009, from a publication called “the therapeutic care journal”; and
b) “Persistent Fear and Anxiety can affect Young Children’s Learning and Development”, an undated working paper from the Center on the Developing Child at Harvard University.
Although the Mother apparently (occupation omitted) at one stage, she now gives her occupation as an (occupation omitted). She apparently prepared her own affidavit and, in doing so, was hampered by the fact that a significant amount of the affidavit was ruled inadmissible on the grounds of relevance..
Parts of the affidavit appear to be more in the way of submissions than statements of fact, but I have allowed them to remain, applying the provisions of s.69ZT of the Family Law Act. It is not the case however that s.69ZT permits the admission of irrelevant material. The provisions of s.56 of the Evidence Act 1995 (Cth) state:
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
The Mother deposes in paragraph [3] of her affidavit that:
I seek the above court orders for the following reasons:
a) The Applicant’s behaviour toward his children and the Respondent, his former wife, is abuse.
b) The children and the Respondent’s fear of the Applicant is genuine and legitimate.
c) The consequence of reintroducing the children to the Applicant will cause the situation between the Applicant and his children to escalate and result in tragedy.[8]
[8] Affidavit of Ms Kerr 5.11.2015 at paragraph [3]
In her affidavit, the Mother sets out what she describes as the Father’s abuse:
a)She deposes that she was very afraid to write her affidavit as she did not know how the Father would react; she and the children and her extended family live in “constant fear and stress as to how the Applicant will react next”. The Father, as an act of revenge, contacted the Child Support Registrar to seek a reduction in the amount of child support he is required to pay;[9]
[9] Ibid at [11]
b)It took a long time and “a dangerous act of violence” to make her decide to leave the relationship;[10]
[10] Ibid at [12]
c)When she lived with the Father, the Mother was constantly ill, was prevented from pursuing her career, became distant with family and friends and, when she was in need of emergency medical care, the Father refused to take her to hospital or call an ambulance;[11]
[11] Ibid at [14]
d)The Father falsely told his psychologist that the Mother had been diagnosed with Bipolar Disorder;[12]
e)The Father “feigns concern” for the children;[13]
f)The Father has moved several times since the parties separated, further and further away from the children, he refused to see the children when the Mother agreed that he could, and he never asked her how they were;[14]
g)When the Mother told the Father that the children were scared of him and did not wish to see him, he “bellowed” at her and “demanded to see them, because he has a right to”;[15]
h)The Mother’s fear of the Father and that of the children “is real and genuine”;[16]
i)The children “could sense there was danger”;[17]
j)“I am very concerned for the wellbeing of my children should they have any contact with the Applicant. By instinct as a mother, I know that their fear is legitimate. For the children to be required to see him on a regular basis would be an enormous stress on their young lives”;[18]
k)As it has been some time since the children have had any contact with their father, they are now happy and well-adjusted and are doing better at school;[19]
l)During the marriage, the Father made “several suicidal threats”;[20] and
m)When the parties were still living together, at dinner the Father “would sit at one end of the table and stare at us with rage. The children remember him as being angry, and with a red face.”[21]
[12] Ibid at [16]
[13] Ibid at [19]
[14] Ibid at [21]
[15] Ibid at [22]
[16] Ibid at [23]
[17] Ibid at [24]
[18] Ibid at [25]
[19] Ibid at [27]
[20] Ibid at [35]
[21] Ibid at [37]
The Mother has annexed to her affidavit copies of:
a)An article from the Institute for Family Violence Studies, College of Social Work of Florida State University entitled “Circle of Violence”; and
b)An article entitled “Power and Control Wheel” from the National Center on Domestic and Sexual Violence in Austin, Texas.
It is the Mother’s view that the Father is a sociopath.
Despite the direction made by the Court on 7th October 2015 that the parties were to rely on one affidavit per witness, the Mother stated at paragraph [4] of her affidavit of 5th November 2015 that she relied on her affidavit of 1st June 2015 to provide details of the abuse which she claims was perpetrated by the Father.
The affidavit of 1st June 2015 is a lengthy document of some 232 paragraphs covering some 36 pages of text, together with annexures. Many of the allegations in this affidavit are assertions without apparent foundation, but some of the more specific allegations are:
a)The Father had a nervous breakdown in May 2010 and was diagnosed with depression;[22]
[22] Affidavit of Ms Kerr 1.6.2015 at [28]
b)On separation, the Father “began to reveal dangerous behaviour” that the Mother had not witnessed before and “his anger was heightened to a level” that the Mother had not witnessed during the marriage;[23]
[23] Ibid at [49]
c)The Father was living a secret life and had “several extra-marital affairs, possibly multiple affairs at once, especially after the children were born”;[24]
[24] Ibid at [50]
d)The Father divorced her to punish her for leaving;[25]
[25] Ibid at [54]
e)The parties had constant arguments about money;[26]
[26] Ibid at [72]
f)The Father admitted that he had a liaison with a female work colleague;[27]
[27] Ibid at [89]
g)The Father was jealous of their son and was harsher with him than with their daughter, never letting him speak and yelling at him;[28]
[28] Ibid at [123]
h)When the parties were separating, the Father’s rage frightened the children on several occasions;[29]
[29] Ibid at [126]
i)The Father was violent on one occasion and knocked her to the ground;[30]
[30] Ibid at [128]
j)The Father is trying to control how and where the Mother and the children live;[31]
[31] Ibid at [133]
k)The Father drank alcohol in the home against the Mother’s wishes;[32]
[32] Ibid at [158]
l)The Father confessed to her that he frequently consumed marijuana before they met;[33]
[33] Ibid at [162]
m)The Father threatened suicide and the Mother fears that he will harm himself in front of the children;[34]
n)In 2002 the parties had an argument and the Father towered over her and bellowed into her face;[35]
o)In 2007 when the Mother approached him about a divorce the Father bellowed into her face and started kicking furniture;[36]
p)The parties had an altercation in the Father’s bedroom and the Father threw a chair and in doing so knocked the Mother to the ground;[37]
q)In 2013 the parties had an argument in which the Mother slapped the Father, he then hit her on the cheek and she slapped him again;[38]
r)In May 2011 the Father towered over the child X and “roared at him”;[39]
s)In 2008 when the Father was toilet-training the child X he forced the child to go to the toilet and would not let him leave the bathroom;[40]
t)The Father bragged to the Mother that he had a sexual encounter with a (presumably female) (position omitted) at a (employer omitted) where he was a (occupation omitted);[41]
u)The Mother deposed at paragraph [188] of her affidavit:
It is possible that the Applicant is engaged in several sexual relationships or encounters at one time, abruptly leaving the women when he is finished using them…[42]
[34] Ibid at [168]-[169]
[35] Ibid at 172]
[36] Ibid at [173]
[37] Ibid at [174]
[38] Ibid at [175]
[39] Ibid at [180]
[40] Ibid at [182]
[41] Ibid at [185]
[42] Ibid at [188]
The Mother also dealt with the question of whether the children’s names should be placed on the Family Law Watch List. She deposed at paragraph [212] that “there is no real threat that I will ‘escape’ overseas with my children”, saying that she did not have the financial means to travel. Further, she stated at paragraph [216] that the children should be free to travel overseas and, at [219], she asked the Court to order “the children’s names be taken off the Family Law Watchlist”.
The Mother went on to depose at paragraph [231]:
To hold the children down, and prevent them from travelling, and the freedom to live the life they wish, is a great sadness and injustice.
In the light of those matters in the Mother’s affidavit of 1st June 2015, it is curious that the Mother now wishes for an order retaining the children’s names on the Family Law Watch List until further order.
The Mother’s father, Mr H, deposed in his affidavit of 26th May 2015 that he supported the Mother’s case. His evidence of the alleged violence and abuse by the Father is contained in paragraphs [5] and [6] of his affidavit, which say:
5. Some time after Mr Palmer left permanently, Ms Kerr asked us to go to their house because Mr Palmer was coming, and she was afraid to be there by herself with the children. He wanted to see that children without Ms Kerr, and she was concerned that the children would be scared. We went to their house at (omitted), and when their father arrived, I was shocked that the children didn’t go near their father. X and Y were very scared, and Y held on to her mother and did not want to leave her side. I could tell he was not a family man. He frightened us with his face, and red eyes.
6. On 14 March 2014, Mr Palmer visited me at my house, (omitted) at 4:50 pm. During the conversation Mr Palmer said, ‘I understand that some husbands kill their own children and wife and then suicide.’ When I heard his voice I was frightened and looked at him. His face and his eyes had so much anger, and were very red. I couldn’t say anything for a while. I didn’t say any words, but he said, ‘I am going to take Ms Kerr to court to see X and Y’.[43]
[43] Affidavit of Mr H 26.5.2015 at paragraphs [5]-[6]
The Mother’s brother, Mr K, in his affidavit of 25th May 2015, described the children’s demeanour during their parents’ separation as “quite distressing” and stated that on one occasion, when he had agreed to look after the children when their mother went out. He said that the children were “quite upset, and fearful of their father returning” and “any mention of their father would make X and Y quite upset”.[44]
[44] Affidavit of Ms Kerr 25.5.2015 at [4]
He further deposed that any mention of their father would make the children “quite upset”.[45]
[45] Ibid at [6]
The Mother’s sister, Ms K, deposed in her affidavit of 27th May 2015 that the Mother told her in May 2011 that she and the Father were separating. Until the Father moved out of the home, she observed the Mother to be distressed and the children to be very quiet and easily upset. Once the Mother and the children were no longer living with the Father, the Mother appears to be more content and stable in her life and the children appear to be happy and more confident.[46]
[46] Affidavit of Ms Kerr 27.5.2015 at [3]-[4]
The Mother’s mother (i.e. the children’s maternal grandmother), Ms W, deposed that before the Mother met the Father she was a bright and healthy young woman but once she started living with the Father she saw her “sick all the time, irritable, anxious”.[47]
[47] Affidavit of Ms W 1.6.2015 at [2]-[3]
Ms W expressed disapproval of the fact that the Father had formed a new relationship. She deposed at paragraphs [11] and [12] of her affidavit that:
11.During the separation we asked Mr Palmer, if he was involved with a woman. He said definitely not. We asked him to give us his word, and promise that he would not have an affair. He gave his word, and promised. But later on we heard from Ms Kerr that Mr Palmer has moved in with his girlfriend.
12.When we were at the court hearing on 4 May 2015, he came out of the courtroom, and sitting where we could see him, he kissed his girlfriend in front of us.[48]
[48] Ibid at [11]-[12]
Ms Kerr’s criticism of the Father kissing his girlfriend on 4th May 2015 appears to be unwarranted as the evidence is that the parties were divorced on 9th November the year before.
The balance of the affidavit appears to be comprised entirely of hearsay from the Mother.
The Father’s evidence comes from his affidavit of 9th November 2015. It is his evidence that the relationship between the parties “deteriorated” from 2010 until the parties separated on 1 April 2013.[49] He deposed at paragraph [10] of his affidavit that:
Since 2008 I had been doing all the cooking and cleaning and the majority of taking care of the children. In July 2009 to December 2010 I ceased working due to feeling under extreme stress in trying to work full-time and support Ms Kerr and the children at home. At this time Ms Kerr was spending a lot of time in bed during the day and asking me to ‘talk’ almost every day. These talks usually consisted of telling me words to the effect “You have ruined my life. You are a psychopath. You are mentally ill.” On one occasion she slapped me hard enough to knock my glasses off my face. On another occasion she hit me hard enough on the arm to leave a bruise.[50]
[49] Affidavit of Mr Palmer 9.11.2015 at [3]
[50] Affidavit of Mr Palmer 9.11.2015 at [10]
The Father went on to depose that he became more and more concerned about the amount of rent that the parties were paying and about the Mother’s mental state. He stated:
I was concerned about the amount of rent we were paying. Ms Kerr said words to the effect “God has told me that we will win lotto. Money isn’t going to be a problem.” I spoke regularly with Mr K, Ms K, and Mr E about these issues and Ms Kerr’s behaviour and mental state culminating in a Mental Health Services person coming to our house. Ms Kerr’s father, mother and sister also attended on this occasion. I observed a gentleman called Mr O and his assistant speak to Ms Kerr and after what I experienced as very tense moments during which Ms Kerr remonstrated with everyone in the room, she agreed to accompany Mr O to (omitted) Hospital to speak to a psychiatrist (Dr D). When she returned home she accused me of “breaking her trust yet again”. She would not accept that her behaviour seemed altered.[51]
[51] Ibid at [12]
The Father deposed that after the parties separated on 1st April, the Mother called him a few days later and he told her that he wished to see the children. She asked him to come immediately, which he reluctantly did. When he arrived at the home the Mother’s parents were present. The Mother became agitated and the parties exchanged words. The Mother’s parents tried to calm the situation.[52]
[52] Ibid at [17]
The Father went on to state at paragraph [18]:
Ms Kerr was angry and accused me of being violent, aggressive and mentally unstable and of having abused her and the children during the relationship. I deny that I ever abused Ms Kerr or the children. She refused to agree to me spending regular time with the children. As she was still angry and agitated, I thought it best to wait for things to calm down.[53]
[53] Affidavit of Mr Palmer 9.11.2015 at [18]
It is the Father’s evidence that he communicated with the Mother and her brother in May 2013, trying to make arrangements to see the children but the Mother would not agree. He has not spent time with the children since. The Father’s solicitor wrote to the Mother on his behalf on 13th May 2013, seeking that an informal arrangement should be entered into for the Father to spend time with the children but the Mother did not respond to the letter. He sent emails to the mother on 29th August 2013 and 13th October 2013, requesting to see the children on Father’s Day and on the child X’s birthday, but to no avail.[54]
[54] Ibid at [20]-[24]
The Father attempted to organise mediation with the Mother with Relationships Australia in about October 2013. Both he and the Mother (he believes) attended a counselling session and the compulsory parenting workshop but the mediation did not take place. He stated:
Subsequent to these events I received a phone call from Relationships Australia telling me that the mediation could not continue as the parties could not enter into the mediation on an even footing and that they would issue a section 60I certificate. When I asked the reason for this, they would not/could not tell me for confidentiality reasons. I still hoped to resolve the parenting issues outside the court. I obtained legal advice but could not afford to institute proceedings.[55]
[55] Ibid at [24]
The Father annexed to his affidavit a copy of a chain of text messages with the mother which took place on 14th November 2013. The Mother’s replies are quite lengthy but include such statements as:
Mr Palmer, you heard first hand how upset the children are with you pursuing the mediation and forcing them against their will to see you. They have been asking me for months to change their surname but I’ve been putting it off to make sure they are absolutely certain this is what they want. With your pursuing of the mediation they are adamant that they want to change their surname…
Show everyone that you have really changed by ending the mediation and putting down my account details on the bond form.[56]Then you have a chance with my kids, my parents won’t think badly of you, and you won’t be in more debt with the electricity bill…
…there is nothing to mediate. If it goes to mediation now the kids are going to say to the adjudicator, they want nothing to do with you. It’s not like when you were a kid, Mr Palmer, children now how[57] legal rights. I think there is even case law that children can divorce their parents…Call Family Relationships and end this…
Do not contact my parents or any of my family members. From now on we do not consider you family anymore.
…
The children said they have all they needed to say to you. They now ant nothing to do with you. They have asked me to tell you under no uncertain terms that they never ever want to see you again. And that as far as they are concerned you are not their dad.
…
I told you not to contact us. Put that bond money in my account and then LEAVE ME, THE CHILDREN AND MY FAMILY ALONE.
[56] The mother is referring here to the return of bond money at the end of the lease of premises in which the parties resided.
[57] sic
…
Just stay out of our lives once and for all. That’s from me AND the children. We don’t want to know you anymore.[58]
[58] Affidavit of Mr Palmer 9.11.2015 Annexure “PLP4”
The Father went to set out at paragraph [26] of his affidavit his account of a telephone conversation with the Mother:
In or around this time, Ms Kerr phoned me and I recall that we had a conversation to the following effect:
Ms Kerr: “Hi Mr Palmer. I have X here. He wants to tell you that he wants you to leave him alone.”
Mr Palmer: “I don’t think that is a good idea.”
Ms Kerr (yelling) “No, you need to listen to him.”
Mr Palmer: “No Ms Kerr. I’m going.” I hung up the phone.
The Father deposes that the Mother told him that when she moved out of the former matrimonial home at the end of the lease in November 2013 she told him that she would not be providing her new address “as the children did not want to see me”.[59]
[59] Affidavit of Mr Palmer 9.11.2015 at [27]
The Father made enquiries between March and May 2014 from members of the Mother’s extended family trying to obtain the address of the Mother and the children, but they refused to give him that information.
Throughout 2014 the Father communicated with the Mother by text message. He deposed at paragraph [31] of his affidavit:
Over the period of 15-30 August 2014 I received a number of lengthy text messages from Ms Kerr accusing me of being mentally ill and generally reflecting on our relationship in a negative way. She repeated that I should wait for the children to come to me and to “call off this divorce”.[60]I deny any allegations of ill mental health and refer to my affidavit sworn on 6 August 2015 and filed in these proceedings in this regard.[61]
[60] The father had commenced divorce proceedings
[61] Ibid at [31]
The Father continued to attempt to arrange to see the children without success.
The Father commenced proceedings in this Court by filing an Application and supporting documents on 6th February 2015. The documents were served on the Mother on 12th February. The Father annexes to his affidavit copies of fifteen text messages sent to him by the Mother between 14th February and 19th February 2015.
The texts make a number of accusations against the Father:
Everything that you did to me, and the children, and all the things you have done behind my back will come out now that you have taken this from within the family to the outside. The truth about you will come out.[62]
Going to court means that I’m finally getting a chance to tell my side of the story. There is a reason why I behaved the way I did, and now after all those years you tried to shut me up, and keep me down, and refused to let me feel the emotions I was entitled to feel, and have the right to say what I needed to say, because of your behaviour. I am now free to talk.[63]
It’s all down on paper, including what you said when we first went to marriage counselling and you told the counsellor that you wanted to destroy me…[64]
Hi Mr Palmer, my parents called me and told me that they understand why I spent that money early on in our split…They also know about your darkside[65], your breakdown, and with me having a family member who works with mentally ill patients, they understand the situation, and that I am protecting myself and the children.[66]
[62] Text 14.2.2015 at Annexure “P9”
[63] Text 15.2.2015 at Annexure “P9” of affidavit of Mr Palmer 9.11.2015
[64] Text 16.2.2015 at Annexure “P9”
[65] sic
[66] Text 18.2.2015 at Annexure “P9”
The Father deposed that as he was sometimes receiving up to three texts a day from the Mother he blocked her number from his telephone.
The Father has received psychological treatment for a Clinical Psychologist, Dr L since 18th June 2010 and annexes a summary report from Dr L dated 23rd July 2015 to his affidavit at Annexure “P10”. Dr L’s report is of some three pages in length, setting out her treatment of him for stress, sleep disturbance and disturbance of mood. She also notes that the Father’s general practitioner had diagnosed him with depression and prescribed anti-depressant medication.
Dr L concludes her report by stating:
Mr Palmer is very open to participating in any measure deemed necessary to facilitate his re-entry into his children’s lives, and I have no concern at all that Mr Palmer’s mental health would impact negatively upon his children should he be granted access to them.[67]
[67] Annexure “P10” to the affidavit of Mr Palmer 9.11.2015
The Father also deposed that he has been consulting a general practitioner, Dr A, since May 2011. He annexes to his affidavit an email from Dr A dated 4th August 2015 in which he states (inter alia):
I am aware of certain allegations of mental illness made against Mr Palmer in FMC proceedings….
He is making good progress and currently maintaining stable occupation. I do not see any issue of him in caring for his children.[68]
[68] Annexure “PLP11” to affidavit of Mr Palmer 9.11.2015
Both parents and the Independent Children’s Lawyer refer to the Child Dispute Conference Memorandum to Court of 7th May 2015 and the Child Inclusive Conference Memorandum to Court of 20th August 2015.
In the former, the Family Consultant noted that there had been no Apprehended Violence Orders or police involvement in this matter. However, both parents acknowledged frequent and extensive arguments between them, some of which apparently took place in front of the children, and one incident “when an argument became physical and the parents slapped each other.”[69]
[69] Child Dispute Conference Memorandum to Court 7 May 2015 page 1
Each parent made serious claims about the poor mental health of the other parent. The Mother described the Father as an alcoholic who had admitted to her that he had used marijuana in the past. The Father denied those allegations. The Mother also claimed that “Mr Palmer was unfaithful to her during the marriage including having relationships with other (employment omitted staff), having a sexual relationship with a female (omitted) staff at his (employer omitted), and watching pornographic images online”. The Father denied those allegations.
The Mother said that the children are extremely fearful of the Father, as is she, and see him as a dangerous man. She seeks an order for no contact between the children and their father. She believes that the children would refuse to see their father if a Judge were to order that they should spend time with him, they no longer call him “dad” and want to change their surnames to “Kerr”.
The Family Consultant said of the Father:
Mr Palmer believes that Ms Kerr has led the children to believe that he is scary and to be avoided. He hopes to be reintroduced to the children and gradually see them with the assistance of counsellors.[70]
[70] Child Dispute Conference Memorandum to Court 7.5.2015 page 2
The Family Consultant noted that the Mother’s strong position in regard to contact suggested that there will be no negotiation about interim arrangements and raised the possibility that “interim orders for an introduction would be very stressful for the children in the short term”.
The Family Consultant also suggested that:
The presentation of the parents and their seemingly dysfunctional relationship may require further assessment by a Child and Family Psychiatrist.
There was a child inclusive conference on 20th August 2015. The Family Consultant noted that the parties’ positions were unchanged, in that:
a)The Father proposed that the children should be reintroduced to him with assistance from counsellors at a contact centre, a process which should proceed slowly. He expressed concern about the impact on the children given the Mother’s attitude and anticipated ongoing difficulties in facilitating the arrangements.
b)The Mother continued to propose that the children should spend no time with the Father at all because of her belief that she must protect the children from the Father’s psychological problems. The Mother was “adamant that Mr Palmer should leave her and the children alone”.[71]
[71] Child Inclusive Conference Memorandum to Court 20.8.2015 page 1
The Family Consultant recorded that both children were worried about meeting their father at Court and said that they did not want to see him at the appointment. The children each said that they remembered the Father as having a red face.
X said that when he was little his father “went up to his face and shouted at him”. He said he was scared that his father might do that again. He remembered his parents shouting a lot at each other, the Father being the louder.
Y said that she thought that the Father had a red face because he was angry every time at dinnertime. She said she was afraid that her father would take her away from her mother and her brother.
The Family Consultant made two recommendations which, in the light of the evidence, deserve serious consideration.
First, it was recommended that:
The only path forward, if the children are to be re-introduced to their father, appears to be for there to be Court Orders for the family to use the services of a supervised contact centre. This process may be very stressful for the children and they may also be assisted by a referral for supportive counselling.
Second, it was recommended that:
Given the seemingly large gap between Ms Kerr’s concerns and Mr Palmer’s claims, it may be that one or both of the parents has a mental health issue that should be further explored by the Court. It is strongly recommended that the family be assessed by a child and Family Psychiatrist experienced in Family Law matters.
Orders that are in the best interests of the children
The parties give conflicting evidence in their affidavits. Much of the evidence is concerning, to say the least. The Mother is intransigent in her assertions that the Father is mentally ill and poses such a threat of harm to the children that no contact with him should be permitted by the Court. The evidence of the Father, by comparison, is that the Mother displays symptoms of mental illness and is actively alienating the children from him.
It is often difficult for a court to make factual findings in interim proceedings which are conducted “on the papers” and evidence cannot be tested by cross-examination. This point was explicitly recognised by the Full Court of the Family Court in Goode & Goode[72], where their Honours said at [68]:
For example, 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 be not be drawn into issues of fact or matters relating to the merits of the substantive case where findings of fact are not possible.[73]
[72] supra
[73] (2006) 36 Fam LR 422 at 442 [68]
However, this does not mean that a Court should not make decisions at all where the evidence, or lack of evidence, calls for it. The Mother’s affidavit evidence and her written and oral submissions are most disturbing, to say the least. Despite the Mother’s assertions, there is relatively little in the way of hard evidence that supports her claim that the Father poses such a threat of harm to the children that he should never see them again, in any circumstances.
Some of the Mother’s claims about the Father, such as her claim that he bragged to her about a sexual encounter with a student and her surmises that he may have been engaging in multiple and simultaneous affairs with other women (see at [44] above) sound implausible bordering on far-fetched.
The Mother’s views in the print-outs of the text messages annexed to the Father’s affidavit are concerning, including her view that the children would have been present at and participating in the mediation with Relationships Australia (see at [62] above) show a willingness by the Mother to involve the children in the dispute between the parents. The Father’s account (at [63] above) of the Mother’s attempt to put the child X on the telephone to tell him that he wanted the Father to leave them alone (if true) is disturbing and raises the concern that the Mother has manipulated the children into taking sides against their father.
The Mother’s claim in her text message to the Father of 14th November 2013 (see at [62] above) that the children had been wanting to change their surnames for months and were adamant that they wished to do so if the Father continued with his quest for mediation must be viewed with the greatest degree of suspicion. On 14th November 2013 the children were respectively aged 8 and 6 years, and the likelihood that they could have formed such views unaided seems remote. As for the Mother’s claim in the same text message about the children divorcing their father, there will be no such order made, even if the Court had the jurisdiction to do so.
It is concerning that the Mother’s submissions that the Father is mentally ill and a sociopath are based on her diagnoses of the Father taken from the Internet and not from any medical practitioner or clinical psychologist. From an evidentiary point of view, they are without foundation and worthless. There is uncontradicted evidence from a medical practitioner and a clinical psychologist that the Father has been diagnosed with stress, depression and disturbance of mood, but poses no threat of harm to his children.
There is no evidence before the Court containing a diagnosis of the Mother’s mental state. I am unable to find that the Mother suffers from a mental illness.
There appears to be a serious risk that the children, not having seen their father for nearly three years, will be so alienated from him that they will never have a relationship with him of any kind. This may well not be in the children’s best interests.
I have had referred to me by Counsel for the Father the decision of Forrest J in Sandford & Cobb[74], where there are some similarities in the factual situation, although the facts are not identical. I reproduce in their entirety paragraphs [37] and [38] of his Honour’s decision, which, with respect, I have found very persuasive and very apt to the case before this Court:
37.Principally, accepting the opinion of the report writer, but also the submissions of the ICL, I have determined on an interim basis that no equal shared parental responsibility should be made. It is simply not appropriate to make such an order in the factual circumstances of this case. There is too much conflict and the parents have no demonstrated recent history of reasonable communication in respect of co-parenting matters.
38.However, the best interests of the two children, in my judgment, require what might be described as “a cautious robustness” to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, couples with the mother’s clear view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father, that the family report writer has so clearly pointed out actually exists at present, in my judgment, demands a fairly robust approach. If the children do not start spending time with the father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.[75]
[74] [2016] FamCA 11
[75] [2016] FamCA 11 at [37]-[38]
It should be made clear, despite the extensive quotation from his Honour’s judgment, that Forrest J is not deciding this case, I am, and I am doing so on the basis of the evidence before me, not the evidence in Sandford & Cobb. However, I am persuaded that his Honour’s approach of “cautious robustness” is called for in this case.
It is for those reasons that I consider the orders sought by the Applicant Father, rather than the more conservative orders suggested by the Independent Children’s Lawyer, are in these children’s best interests.
As for the orders sought by the Mother, I do not consider it appropriate to make an order that the children have no contact with the Father, even on an interim basis. It is also inappropriate to make a wide-ranging order that the Father undertake psychiatric assessment “at a recognised psychiatric facility that specialises in anti-social personality and borderline personal disorder”. There is no evidence that the Father suffers from such conditions, other than the Mother’s assertions. I note that the Mother concludes her Case Outline with this sentence:
Should the children wish to see their father in the future, I believe a meeting at a Contact Centre, at the father’s cost, with an independent third party present, is the safest and most viable option.
It does not seem to be appropriate or in the children’s best interests to require children currently aged 10 and 8 years to make a decision as to whether they should see their father or not.
The Mother also seeks an Apprehended Violence Order against the Father for the children and herself. As Apprehended Violence Orders are made under State legislation, this Court does not have the jurisdiction to make such an order. If the Mother wishes an order of this type, she would need to apply to the Local Court of New South Wales.
It is open to the Court to grant an injunction order under section 68B of the Family Law Act 1975 for the protection of the parties, should it be appropriate. In my view, there is no basis for such an injunction. The Mother has given no explanation as to why she has waited for nearly three years before seeking such any relief of this nature. The children have not seen their father since May 2013, and if there were reasonable grounds for an injunction at that stage, then an application should have been made at the time. The delay is unconscionable and unexplained and no injunction will be granted.
The Mother now seeks an order that the children’s names should remain on the Family Law Watch List until further order. No evidence has been led as to why this order should be made. It is in stark contrast to the matters expressed in paragraphs [212] to [217] of the Mother’s affidavit of 1st June 2015, where she sets out reasons why the children’s names should not be on the Watch List.
A perusal of the Court file shows that if the children’s names are currently on the Family Law Watch List, it is not as a result of any order made in these proceedings.
As there is no evidence in support of placing the children’s names on the Family Law Watch List, I will order that their names should not be on the Watch List.
I cannot see any need to make an order requiring all communications between the parties to be made through the Father’s solicitor, Ms Harper. It is the Father’s evidence that he had a block put on his telephone to stop the Mother sending him a multitude of text messages.
The Family Consultant suggested in the Child Inclusive Conference Memorandum to Court of 20th August 2015 that whether or not one or both of the parties have a mental health issue should be further explored by the Court. The Family Consultant strongly recommended that the family should be assessed by a Child and Family Psychiatrist experienced in Family Law matters.
It is disappointing to be told that the parties do not have the funds to enable the Court to appoint a Child and Family Psychiatrist as a Court expert to assess the family. I suggest that the Independent Children’s Lawyer, if he has not done so already, should make representations to Legal Aid NSW for the funding to obtain the services of a Family and Child Psychiatrist as recommended by the Family Consultant.
In the meantime, as requested, I will order a Family Report under the provisions of. S.62G of the Family Law Act.
The Future Progress of the Matter
This matter will not remain in my docket as I will not be dealing with it further. I have no dates available for a final hearing, so the matter will be transferred to the docket of her Honour Judge Boyle. The matter will be mentioned before her Honour on a date to be fixed.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 31 March 2016
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