PALMER & PALMER

[2011] FamCA 157

FAMILY COURT OF AUSTRALIA

PALMER & PALMER [2011] FamCA 157

FAMILY LAW - CHILDREN – With whom the children live – mother proposes the children live with her and the maternal uncle – maternal uncle suffers from mental illness – maternal uncle has violent tendencies – where the mother is not candid about the maternal uncle’s violent tendencies – mother is restrained from allowing the children to live in the same house or property as the maternal uncle or maternal aunt

APPLICANT: Mr Plamer

RESPONDENT: Ms Palmer

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1573 of 2009

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 1 & 2 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Levick

SOLICITOR FOR THE APPLICANT: MRM Lawyers

COUNSEL FOR THE RESPONDENT: Mr R Wilkinson

SOLICITOR FOR THE RESPONDENT: Sneddon & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr T Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother is restrained from establishing a residence for the children R, S, both born … August 2001 and B born … November 2006 (“the children”) in the same house or on the same property as Mr H (“the maternal uncle”) or Ms H (“the maternal aunt”).

2. The mother is restrained from permitting the children to stay overnight in the same property as the maternal uncle.

3. The mother must be present at all times when the children or any of them are in the company of the maternal uncle irrespective of who else may be present.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:

Mr Palmer

Applicant

And

Ms Palmer

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a dispute in relation to a specific issue of parenting.  Proceedings were listed for hearing on 1 and 2 February 2011.  The parties were able to negotiate settlement of all issues except one.  There are three children of the relationship:  twin girls R and S born in August 2001, and a boy B born in November 2005. 

2. The consent orders provided for equal shared parental responsibility, residence of the children with the mother and time with the father five nights per fortnight, half school holidays and at other times.  The contentious issue is whether the mother should be permitted to establish a residence for the children in the same house or on the same residential property as the maternal uncle, Mr H (“the maternal uncle”).  The maternal uncle is aged 34 and suffers from a mental illness, namely paranoid schizophrenia.

3. The parties have consented to the following relevant order:

   15.The mother is restrained from leaving the children in the sole care or joint care of the children’s maternal aunt or uncle being [Ms H or Mr H].

4. The father seeks the following relevant orders:

   12.The mother is restrained from residing with the children on the same property as the maternal aunt or uncle being [Ms H or Mr H].

   13.The mother is restrained from allowing the maternal uncle [Mr H] to stay overnight with the children at any property.

   14.The mother is restrained from leaving the children in the joint care of the maternal grandmother and the maternal uncle, [Ms J and Mr H].

5. The father set out his concerns in relation to his former brother-in-law in paragraphs 25 to 28 of his affidavit affirmed on 17 January 2011.  These paragraphs raised two matters.  Firstly, the possible risk to the children from the violent conduct arising from their uncle’s mental illness and secondly, the father’s belief that the mother intended to establish a common residence with her mother and her brother Mr H.  The father expressed his concern that if the uncle became aggressive as “he has in the past” that the mother would not be able to restrain him and even if she was able to do so, the children would be harmed by witnessing such a scene.  The risk identified by the father that the children might be exposed to aggressive and abusive behaviour by their uncle appears to be borne out by material produced in response to subpoena.  There is no suggestion in the evidence that the maternal uncle has been violent, aggressive or abusive towards the children, nor is there any basis for concluding that the maternal uncle bears the children ill will or would deliberately hurt or upset them.  The father freely conceded that he had not seen the uncle assault the children, conduct himself inappropriately in their presence, or drink alcohol to excess in front of them.  In any event I have no doubt that the mother would have swiftly moved to protect the children had such an event occurred.

6. The mother opposes the making of orders which would restrain her from establishing a residence for the children which included her brother as a member of the household or an occupant of the property where she was living. 

Evidence

1. There are two main difficulties with the mother’s evidence.  Firstly, the mother was not candid.  Many questions were put to her arising from extensive material produced on subpoena from the police and the mental health service.  She was at times evasive, for example:

   Q:You wouldn’t agree he was a risk to that man (a man assaulted on [… 2006] by the uncle in the [… Hotel in S).

   A:No. because I wasn’t present.

   The mother was defensive of her brother, for example:

   Q:Either you or your mother told the doctor about aggression and abuse by your brother.

   A:Not to the family.

2. At times the mother simply failed to be truthful.  For instance, the proposition was put to her that in or around March 2007 her brother had become increasingly aggressive with their parents, standing over their parents for money, using it for alcohol and perhaps gambling, that his behaviour had deteriorated and that their parents were concerned for their own safety. 

3. In combination with the evidence of the mother and her own mother that they were very close, always have been and wished to establish a common residence, the following questions were asked and the answers are incredible.

   Q:On 15 March 2007 he (the uncle) had a fist fight with his father.

   A:I know nothing about that

   Q:Your parents reported that they were concerned for their safety.

   A:No, I never heard anything about that.

   Q:Your mother reported to the mental health team that she and your father were frightened of him (the uncle).

   A:No, I didn’t know.

   Q:You were aware of the fear your mother had about [Mr H].

   A:       No, I wasn’t aware of any of that.

4. During the course of this hearing I encouraged the mother to take the opportunity to read the material produced on subpoena in order to inform herself about the incidents that had been put to her and of which she denied all knowledge.  The mother did take that opportunity and read the material.  There was however no indication from the mother that she now conceded past aggressive conduct by her brother.  Accordingly, the Court cannot be confident that if the mother was sharing a residence/living in close proximity to her brother, she would be candid with the father if there was a deterioration in her brother’s health and conduct.

5. The second difficulty in the evidence was that there was no evidence by or on behalf of the maternal uncle as to his current diagnosis, current health and response to medication, treatment and more importantly, prognosis.  There was an undated document, annexure “A” to the mother’s affidavit, filed 17 January 2011.  This document was not attached to an affidavit by either of the medical practitioners identified in the document.  It did not identify a period of treatment.  It was undated.  More worryingly the document included this statement:  “[Mr H] has no history of any violence or aggression”.  The latter statement is quite wrong and in stark contrast with the oral and documentary evidence. 

6. The maternal grandmother, Mrs J, gave evidence, and although she had a tendency to minimise the violent and aggressive behaviour of her son Mr H, I formed the impression that she was an honest person contending with an immensely difficult situation.   Mrs J has been caring for her son Mr H throughout his adult life and wishes to continue to do so.  She also has a strong wish to form a household with her daughter and three grandchildren, with whom she has strong and loving relationships.  Mrs J gave evidence of a plan that she and her daughter had formulated to sell her home and combine finances to buy a property in F.  She said that the sale of her home and the purchase of the land at F were certain.  Plans had been drawn up for a property to be built which included a connected area for the maternal uncle to live in.  I accept Mrs J’s evidence, which was inconsistent with what the mother had to say on the subject.

7. I note that in the past the records suggest that Mrs J has been unsurprisingly unable to control her son when he has been effected by alcohol, or suffering the effects of the paranoia which is a symptom of his illness.  The potential for a repeat of attacks on his mother or attempts to stand over her for money remain as real possibilities.

8. Accordingly the Court is left with this position.  There is no evidence as to the current health status of the maternal uncle.  He was, on the evidence of the mother which I accept, unwilling to attend court.  There is evidence of random incidents of violent, aggressive and uninhibited behaviour by the maternal uncle around his local area.  At times he was intoxicated and/or affected by illicit drugs. 

Information drawn from exhibits

1. The following matters were brought to attention during the course of the hearing and are not comprehensive of all incidents involving the uncle.  They are as follows:

   16 January 2005      The maternal uncle was hiding in the back yard of premises exhibiting paranoid behaviour.  He was taken to his home address and his parents were advised to contact the mental health team.

   25 July 2005            The paternal grandfather was concerned by the maternal uncle’s behaviour, signs of paranoia, his fear that his food was being poisoned and that Nazis were trying to kill him.  Police reported that he had been found jumping over fences as a result of some fearful belief. 

   4 December 2005    The maternal uncle maliciously destroyed property, being a glass panel in a shop.  He was confronted by a security guard whom he then challenged to a fight.  He was yelling abuse and was arrested.

   16 December 2005  The maternal uncle walked into a car dealership and yelled abuse at the staff.  He was agitated and uncertain about his own conduct.  Around this time the maternal grandmother reported that her son had mental issues and had been hostile and evasive.

   6 January 2006        The maternal uncle confronted a man in his own home.

   11 January 2006      The maternal uncle maliciously wounded the same man in a hotel and was charged with assault occasioning actual bodily harm as a result of two punches to the man’s right eye and jaw.  The maternal uncle was discharged into care pursuant to the Mental Health Act 2007 (NSW).

   15 March 2007        The maternal uncle was violent with his own parents who were concerned for their own safety.  ( Exhibits ICL3 and F1).  He punched his mother and “nearly came to blows with his father”.  Both parents were concerned for their safety and reported same to police.

   5 August 2008         The maternal uncle was confronted by security on a ferry over an open bottle of port.

   23 October 2009     There was a physical fight in the home of the maternal grandmother between the uncle and the maternal aunt where the instigator was the maternal aunt, Ms H.  There was a physical fight between Ms H and the maternal uncle, which became extremely violent with biting and kicking.  There were extensive injuries.

   8 March 2010          When the maternal uncle was hospitalised he became abusive towards a nurse.

   24 July 2010            The maternal uncle was found urinating in the street with the whole of his genitals exposed in a busy public area.  He became abusive and antagonistic when confronted by police. (Exhibit ICL4)

   2 March 2010          An AVO was put in place for the protection of the maternal grandmother from the maternal uncle, which AVO is due to expire on 1 March 2011.  

Conclusion

1. Nothing could be more understandable than that the mother would like to share a residence with her own mother.  There would be financial and emotional benefits to both women and the children from such an arrangement.  However the risk of the children being exposed to aggressive and abusive conduct by their uncle must be considered unacceptable when the true state of his physical and mental state is unknown, his propensity for random acts of aggression is established on the evidence and the Court cannot be confident that the mother would be open, especially with the father, about any episodic deterioration in the uncle’s health such that the children should be moved to a place of safety (probably the father’s home) until the matter could be properly addressed.  Accordingly, I make the orders sought.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 February 2011.

Associate:   

Date:  24 February 2011