Parkinson and Stuart

[2019] FCCA 2152

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKINSON & STUART [2019] FCCA 2152

Catchwords:
FAMILY LAW – Parenting – interim hearing – allegations of family violence – assessment of risk to the child – where child has been subject to a significant change in living circumstances – child to remain in the care of the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 69ZW

Cases cited:

Goode & Goode (2006) FLC 93-286

Deiter & Deiter [2011] FamCAFC 82

Applicant: MR PARKINSON

Respondent: MS STUART

File Number: ADC 2121 of 2019

Judgment of: Judge Kari

Hearing date: 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Adelaide

Delivered on: 23 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Wabnitz

Solicitors for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Salisbury Lawyers

Solicitors for the Independent Children’s Lawyer Ms Rieniets of Denise M Rieniets & Associates Pty Ltd

ORDERS

1. That until further Order:

   (a)The child [X] (born … 2013) do live with the Father; and

   (b)The child spend time with the Mother as follows:

   (i)During terms 3 and 4 2019 from the conclusion of school Friday to the commencement of school Monday each alternate weekend;

   (ii)During the 2019 October school holidays for one week commencing on the Friday the child would have been scheduled to come into the Mother’s care pursuant to paragraph 1(b)(i) herein.

2. That the parties ensure the child continues to attend Suburb A Primary School.

3. That the parties be restrained and injunctions are hereby granted restraining them from:

   (a)Consuming alcohol 24 hours prior to or during any time the child is in their care;

   (b)Denigrating the other of them or members of their household to or in the presence of the child or permitting anyone else to do so

   (c)Discussing the proceedings with the child or in the child’s presence or hearing or permitting anyone else to do so.

4. That the proceedings are adjourned to 27 November 2019 at 2:00pm for Callover and possible Trial listing.

5. That the parties personally attend the Callover AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file principal attend.

6. That no less than seven (7) days prior to the Callover date the parties shall file and serve:

   (a)A brief summary of the issues in dispute, together with a Minute of the specific Orders sought; and

   (b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.

7. That pursuant to Section 62G(2) of the Family Law Act 1975 (Cth), the parties and the child [X] (born … 2013) attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with a request that such report be released by 18 November 2019.

8. The Family Report to deal with the following matters:

   (a)Any views expressed by the said child and any factors (such as the said child maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

9. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

10. The parties do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.

11. The report writer be at liberty to liaise with any person in relation to the welfare of the child.

12. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

13. Unless a party objects, in writing, within fourteen (14) days of the release of the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

14. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

THE COURT NOTES THAT:

(A)At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2121 of 2019

MR PARKINSON

Applicant

And

MS STUART

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings come before me in relation to the parties’ child, [X], born on … 2013.  [X] is six years of age. 

2. [X]’s parents have had a difficult relationship in the sense that the father asserts they were in a de facto relationship from approximately 2009 until September 2015, whereas the mother asserts that they were never in a de facto relationship but rather a casual relationship where they would, at times, spend nights in each other homes but that ostensibly the father used for his own sexual gratification and needs.

3. There appears to be no conjecture between the parties that at the time that [X] was born they were not living together but that some two and a half years later or thereabouts, in approximately mid-2015,  the mother acknowledges that the father had told her that he was to become homeless and she allowed him to move into her home and that he remained living with her until sometime on or about 9 September 2015, which is the same date that the father asserts the parties’ de facto relationship ended.

4. Again, there appears to be no conjecture between the parties that between September 2015 and January of this year the father largely did not spend any time with [X].  What occurred, however, on 24 January 2019, is that the father was at home in the evening and, at approximately 11 pm, the police attended at his home with the child [X], and advised him that the mother had been arrested for an incident in which she was alleged to have had slashed her then de facto partner, Mr B, with a knife and then doused him with petrol.  I will return to that incident shortly.

5. The parties also appear to agree that [X] remained in the father’s primary care until 1 May 2019, when, again, it appears the subject of agreement that the mother attended without the knowledge of the father and removed [X] from her school that day, such that when the father came to collect [X], on the conclusion of school that day, she was not present. 

6. In relation to the event on 24 January 2019, there appears to be some significant conjecture, from the wife at least, if no one else, as to what transpired that day. 

7. When the matter first came before me on the father’s urgent application of 27 May 2019 at a hearing on 4 June 2019, I made orders requiring the child to be returned to the father’s care, for the child to live with the father and for the child to spend alternate weekends with the mother each alternate weekend from the conclusion of school Friday to the commencement of school on Monday. 

8. At that juncture, the mother had not filed extensive answering documents and, indeed, the matter has come back before me twice since those orders were made.

9. Ultimately, the hearing proceeded this day in circumstances where a range of things had happened. Firstly, the mother had filed her answering documents on 4 July 2019 and, secondly and importantly, having made a section 69ZW orders directed to SAPOL at the first hearing and documents having been produced, those documents were made available yesterday for all of the parties to inspect prior to hearing full submissions in the matter. That occurred and I have been provided today with a copy by the father’s counsel of the police apprehension report relating to the incident on 24 January 2019.

10. It is important at this juncture to understand that, in the context of the father having made a specific allegation in his original affidavit as to what the police had told him had occurred when they delivered [X] to his home at 11 pm on 24 January, the mother went on oath in her responding material filed on 4 July 2019 as to what occurred on that day.  What the mother says is set out in very short compass in four short paragraphs in her affidavit in the following terms, starting at paragraph 66:

    “On 24 January 2019, I told Mr B that I was terminating the relationship and then I was not going to pursue a relationship with him.  He then fabricated allegations that I had assaulted him with a knife and doused him with petrol.  Those allegations were entirely fabricated and the product of malice and his mental health issues.  The separation occurred at my residence and when I kicked Mr B out of my home, unbeknown to me, he remained lurking out near the sidewalk out the front, where he called the police and made those allegations. 

    After he had left, I assumed he had gone back home.  Shortly thereafter, I received a knock at the door and, when I answered it, there were police officers standing there.  I was arrested and taken into custody before later being released on bail.  I was in shock and astounded by what had happened.”

11. The mother then goes on to say that on the night of her arrest:

    “[X] was with me, given that she lived with me, and the police indicated to me when they were about to take me into custody that they needed to deliver [X] somewhere and they demanded that I nominate someone.”

12. The mother goes on to say that:

    “I was in total shock at the time and I simply could not believe the police had been there and that I had been charged with offences of such a serious nature in circumstances where those events simply did not happen.  In my panic, I indicated to the police the identity of the father and also the identity of my own mother as being two options where [X] could be taken.  I told the police to take [X] to my mother’s, given they had a loving and close relationship.  I was then taken into custody and the police delivered [X] to the father, rather than my own mother, and I was not aware of that decision by police until later.”

13. What is of significance of those paragraphs that I have highlighted from the mother’s affidavit is, firstly, that she denies the events having taken place whatsoever.  The mother denies and says, more importantly, that the allegations were entirely fabricated.  The mother also asserts that the events simply did not happen. 

14. I now have before me, as a result of these documents produced by SAPOL pursuant to the section 69ZW orders, a copy of the police apprehension report. That report is some one and a half pages but, importantly, while the victim declined to give a statement, he provided the police with a version of events.

15. There was a witness to the incident being the mother’s adult child, a Mr C, who is 19 years of age.  And the mother herself gave an interview and provided – it is recorded – a partial version of events confirming that she and the victim were having a verbal and physical altercation.  However, she declined to answer questions relating to the laceration to the victim’s head.  The first point I make is that on the night of her arrest, the mother acknowledged to the police that she and the victim were having a verbal and physical altercation.

16. That does not make its way in any way, shape or form into the mother’s affidavit of 4 July 2019.  Of further significance in the police apprehension report is a record from the police, which records that the accused, namely, the mother, was grossly intoxicated and was conveyed to the Suburb F police station where she was given her arrest rights.  Again, the mother does not set out in her affidavit of 4 July 2019 that there was any alcohol involved in the incident and nor that she was intoxicated in any way.

17. Significantly, again, from the police apprehension report, are matters from the most neutral person involved in the incident, being the mother’s adult child, Mr C.  I commented during the hearing that one might have expected the child, Mr C, to act protectively of his mother and that he may have attempted to give a version of events on the night of the incident which was protective and defensive of his mother.  It appears that he did no such thing, to the extent that what is recorded is the following:

    “that the victim and the accused had been having verbal arguments, that on 24 January 2019 the accused [namely, the mother], arrived home from work at about 4.30 pm.”

18. I pause at this juncture to record and note that the mother acknowledges both in her affidavit but also through counsel today that [X] was home and in her care during this incident.

19. Turning back to the apprehension report and the version given by Mr C, the mother’s child:

    “the accused arrived home from work at about 4.30 pm, at which time she started drinking wine and the victim was drinking cans of Woodstock.  At the accused’s request, this witness and the victim left the address and purchased more alcohol from a shop nearby.  A short time after arriving home, the accused and the victim resumed drinking alcohol and started arguing.

    The argument became physical when the victim pushed the accused to the ground and the accused slapped the victim.  The victim has kicked the accused twice to the leg.  The accused then stood in the kitchen and the victim stood in the dining room with the kitchen bench between them.  Both the victim and the accused were yelling that they would kill each other.  The witness saw the accused pick up a house alarm phone and an internet box from the kitchen bench and throw them at the victim’s head.  A knife was between these items as the accused threw them and the knife hit the victim in the head.  The victim’s head started bleeding straightaway and the accused apologised to the victim, stating that she had not meant to throw the knife. 

    The accused and the victim continued to argue and the victim left via the front door.  The victim has pushed the accused up against a fence and the witness told the victim to let the accused go.  The victim has then wanted to fight with the witness, [the witness being the mother’s adult child].  The accused then picked up a jerry can of fuel and threatened to light the victim on fire if he touched the witness.  The witness removed the jerry can and went inside the premises with the accused.”

20. Clearly, on any version of the event recorded in the police apprehension report, there was a violent, verbally aggressive, physically aggressively and certainly frightening altercation at the mother’s home between the mother and her then partner on the evening of 24 January 2019.  [X] was present.  I do not know whether she witnessed any of these events.  I do not know where she was in the house at the time, but it is of concern to me, firstly, that the mother was drinking and had become so intoxicated that she was described by the police to be “grossly intoxicated”, secondly, that there was a violent and an extremely violent altercation in the home that night, and, thirdly, that none of these are matters which the mother at all acknowledges in her affidavit filed on 4 July 2019.

21. As I say, the result of those events were that [X] was placed in the father’s primary care.  The mother says, ultimately, she was not satisfied and not happy with that arrangement, but it is acknowledged that until she removed the child from school on 1 May 2019, she, herself, did not take steps to bring the proceedings before the Court or deal with the matter in a more orderly way. 

22. The mother says that the charges were ultimately dropped, to use her terms, on 11 April 2019, and I recall, when the matter was before me yesterday, reading out to the parties some of the material provided pursuant to the section 69ZW that confirmed that that is when the proceedings and charges were withdrawn.

23. Mr Wabnitz, on behalf of the father, has made submissions to the effect that there is no surprise that the charges were withdrawn in circumstances where the apprehension report makes it clear that the victim, himself, declined to give a statement, thus making it difficult for the police to pursue any charges.  I accept that submission. 

24. In terms of the other matters that transpired since [X] was placed in the father’s care is, it would now appear, there was an agreement by the mother that [X] be enrolled and that she attended Suburb A Primary School.  I say “it now appears” because I have been provided today with a signed enrolment form for [X] to attend Suburb A Primary School bearing both the mother and the father’s signature and dated 7 February 2019, that form being signed by the mother and the father about a fortnight after the mother’s arrest and at a time when [X] was in the father’s care.

25. There appears to be an issue taken by the mother with respect to that school enrolment, and she asserts that the father:

    a)acted opportunistically in retaining [X] in his care; and

    b)acted with entirely self-interest and in a non-child focused way by removing [X] from the school that she had attended across last year, being D Preschool, and placing her in a school that was literally minutes away from his home. 

26. While the mother may hold those views, in circumstances where she signed an enrolment form, clearly, when she signed the enrolment form, she agreed, for whatever reason, that [X] should attend Suburb A Primary School this year.

27. The mother makes allegations in her material as to matters pertaining to family violence as and between her and the father.  She asserts, among other things, that the father acted in a sexually and physically aggressive way towards her during their relationship, that the father is a heavy drinker, and that there are various allegations in relation to the father, including, but not limited to, an assertion that the father’s sister, a Ms E, has an intervention order with respect to the father and his alleged threats to kill her.

28. The father asserts that the mother has a history of domestic violence towards him, towards her now adult children and also towards previous partners.  The father asserts that the mother has, on a previous occasion, stabbed him with a knife and injured his hands and, indeed, he points to the recent violent altercation between the mother and Mr B as further evidence of the mother’s propensity for violence.

29. While these allegations are made by both of the parties, it is difficult for me, at this juncture, and given the nature of an interim hearing, where the parties are not subjected to any cross-examination and their evidence tested, for me to make findings as to the parties’ respective allegations.  Having said that, the events involving Mr B and what, on any view, appears to have been a highly violent and alcohol-fuelled incident are matters of significant concern to me, and my concern is heightened more so in circumstances where the mother completely denies those events having even occurred and says that they were entirely fabricated, when, clearly on the basis of the apprehension report, they were not fabricated to the extent that the mother would assert that they are. 

1. There may be elements that the mother does not agree with in the versions provided by the various witnesses, but what appears consistent across all of the versions is, firstly, that the mother was very intoxicated, secondly, that there was a verbal argument between the mother and Mr B, and, thirdly, that the verbal argument escalated to a physical argument and resulted in a knife being thrown accidentally, it would appear, by the mother, causing a laceration to Mr B’s head.

2. I am mindful that in any parenting proceedings, I am required and guided by the decision, rather, of the Full Court in Goode & Goode[1] to consider the legislative pathway, and I have attempted, so far, to identify the issues in dispute between the parties and any agreed and uncontested relevant facts. 

   [1] (2006) FLC 93-286.

3. I now turn to the competing proposals of the parties. The father’s position is that [X] should remain in his primary care and that she continue to spend time with the mother each alternate weekend from the conclusion of school Friday until the commencement of school Monday and that, in addition, she should spend one half of the school holidays with the mother.  The father’s position is that if the Court were to accede to the mother’s request to have [X] returned to her primary care, that the Court should not do so and that the Court should, rather, have [X] live in a shared care arrangement between the parties on a week-about basis.  The father also promotes a position that would see [X] remain at Suburb A Primary School where she has been attending across this year. 

4. The mother’s position is that [X] should immediately be returned to her primary care and that she should spend alternate weekends with the father from the conclusion of school Friday until the commencement of school on Monday.  The mother says that if I were to accede to the father’s application to have [X] remain in the father’s primary care, then, essentially, she puts exactly the same alternative position to that of the father, namely, that [X] live with the parties on a shared care week-about basis. 

5. In any parenting proceedings, I am required to consider the question of parental responsibility pursuant to section 61DA of the Act. Having said that, given the interim nature of these proceedings, I am not obliged to make orders with respect to parental responsibility and I decline to do so, noting in the process that the mother seeks sole parental responsibility and the father seeks orders that the parties share parental responsibility.

6. Having declined to make any orders about parental responsibility and turning back to the legislative pathway, I am ultimately required to make orders that I consider to be in [X]’s best interests, and, in doing so, I am guided by those matters set out in section 60CC of the Act, being the primary considerations, namely, the benefit to the child of having a meaningful relationship with both of her parents and, secondly, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. After considering those matters, I am then to consider the additional considerations set out in section 60CC of the Act, which are numerous and varied, but include a catch-all “any fact or circumstances that the Court thinks is relevant”. Accordingly, my discretion is broad.

7. In terms of the primary considerations, the father’s position, and it is urged upon me today that I should act protectively, because he asserts that in light of the events of January of this year, in light of the mother’s complete denial of those events and the matters now borne out by the information in the police apprehension report, that [X] has suffered harm from being exposed to family violence, if nothing else, and that there is a risk and an unacceptable risk that she would come to harm, whether it be direct physical harm or harm that would flow from witnessing further family violence in the mother’s home.

8. As the Full Court considered in the decision of Deiter & Deiter, a 2011 decision:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements. The first requires prediction of the likelihood of the occurrence of harmful events, and the second requires the consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court. [2]

   [2] [2011] FamCAFC 82, [61].

9. Deiter& Deiter also talks about the use to which corroborative evidence can be put.  In this case, there is independent corroborative evidence in the form of the police apprehension report.  And, as I say, I am concerned that the mother does not, in any way, acknowledge the events that transpired that night.  That separate and independent record of events, even if the mother may challenge elements of it, in my view, corroborates to some degree the allegations made by the father, and while it is difficult for me to make precise findings as to what occurred on 24 January 2019, I am satisfied at this juncture that there was a significant altercation in which the mother appears to have been intoxicated, an incident in which it appears that there was violence in every form fitting within the definition of family violence of the Act as between the mother and her then partner, Mr B. 

10. I am concerned, in light of all of those matters, that [X] was present in the home when this incident occurred, and I am concerned that there is a risk of [X] being exposed to further events of that nature.  The question is whether it is an unacceptable risk.  An unacceptable risk would lead me to a conclusion that [X] should not spend any time with her mother, and I am not at that point.  It appears, and I accept the mother’s evidence that she is no longer in a relationship with Mr B, and that that issue and cause for dispute has dissipated. 

11. Having said that, however, I am concerned by her adult child’s version of events, namely, that the verbal argument initially took place as and between the mother and her adult child, and that during that argument, during the evening or day at some point, the mother had her adult child take her to purchase more alcohol and that the incident escalated beyond control that evening.

12. Weighing risk is a difficult exercise, but I am, to some degree, heartened that there do not appear to be any further allegations made since the events of January 2019. That is not to say that the risk has been entirely removed, and that is what I am concerned about. And I have those concerns in the context of matters I understand to have highlighted to the parties and flowing from the section 69ZW material produced by SAPOL which I read to the parties yesterday afternoon, that there appears to be a tendency for the mother and I note that there are various charges and convictions of the mother involving both alcohol related offences and charges of assault in which the mother is the alleged perpetrator. That causes me concern because it would appear that the events of January of this year were not isolated and were not situational on the day.

13. When I turn to the additional considerations in the Act, [X] is too young at this stage, nor has she been given the opportunity to express her views.  That is not to say that if she does express views, that I will adopt them or that I will ignore them.  I will, in due course, give them the appropriate weight that they require. 

14. I note that the events of this year have been significantly disruptive for [X].  The events of January which saw her being placed into the primary care of her father, whom she had not ever had a meaningful relationship with, must invariably have been very confusing for her.  Added to that, she has started at a new school this year.  Equally confusing for [X] would have been the events of 1 May and then the events following the making of my orders returning [X] to the care of the father on 4 June 2019. 

15. I am concerned about the level of upheaval and disruption to [X] at her very tender age.  While I acknowledge that the mother has been the primary carer of [X], undisputedly it appears, until January this year, the events of January of this year raise sufficient concerns to my mind that I am not prepared to disrupt [X]’s arrangements at this juncture. 

16. While I note that there are significant criticisms that could be made of the father and his behaviour, including but not limited to the sending of inappropriate text messages and the use of highly inappropriate and derogatory language in relation to the mother when he telephoned her school on the day that [X] was removed from Suburb A Primary, I accept at this juncture the submissions made by the father’s solicitor that the father is “rough around the edges” and that, while regrettable, unfortunately that was the language that he used. 

17. That is not to say that I condone or excuse the language, but in the context particularly in relation to the phone calls to the school being on the day that [X] was unilaterally removed from the school without his knowledge, there can be some degree of understanding as to why, in a distressed state, he presented and made the phone calls that he did, as entirely inappropriate as those phone calls and the comments he made were.

18. For all of the above reasons, I make the following orders.

NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Kari

Date:  6 August 2019