PEARCY & RADDEN

[2020] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEARCY & RADDEN [2020] FCCA 2657

Catchwords:
FAMILY LAW – Parenting – interim orders – young child – allegations of family violence – recovery – competing live with applications – assessment of risk – best interests of child – orders made for father to return child to mother – child to live with mother and spend regular time with father.

Legislation:

Family Law Act 1975 (Cth), ss.67Q, 67T, 67V

Applicant: MS PEARCY

Respondent: MR RADDEN

File Number: PAC 4517 of 2020

Judgment of: Judge Obradovic

Hearing date: 15 September 2020

Date of Last Submission: 15 September 2020

Delivered at: Parramatta

Delivered on: 22 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Graham

Solicitors for the Applicant: Glenn R Walters & Co

Solicitor for the Respondent: McDonnell Schroder

Appearing for the Respondent: Mr Sampson

PENDING FURTHER ORDER:

1. The child X born in 2019 shall live with the mother.

2. The father or his nominee shall deliver the child to the mother’s residence at 6pm on 22 September 2020.

3. The child shall spend time with the father commencing on 2 October 2020, and each alternate week thereafter from 5.30pm on Friday to 5.30pm on Sunday, and at all other times as agreed to between the parents in writing.

4. The father or his nominee is to collect the child from the mother’s residence at the commencement of the child’s time with the father and the father or his nominee is to deliver the child to the mother’s residence at the conclusion of the child’s time with the father.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born in 2019 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. List the matter for directions at 2:15pm on 25 January 2021.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4517 of 2020

MS PEARCY

Applicant

And

MR RADDEN

Respondent

REASONS FOR JUDGMENT

1. The Court heard on Tuesday last week, being the second day of a busy duty week, the mother’s urgent application for a recovery order in respect of the parties’ only child, X, who is only 1 year and 9 months old.

2. The Initiating Application was filed on 31 August 2020, with the matter being listed at short notice.  The father had, by the afternoon of the first listing, filed two Affidavits, Notice of Risk and a Response. 

3. While the mother’s application sought a recovery order pursuant to s.67Q of the Act, she clarified her position during the urgent hearing that she was seeking orders on an interim basis for the child to live with her and spend alternate weekends with the father.

4. In summary, the father sought orders for the child to live with him and spend time with the mother on a supervised basis.

5. While recovery orders are usually appropriate only where there are parenting orders in place such that a child may be recovered, there is nothing in the Act to prevent the Court from making such an order in circumstances where there is no parenting order in existence. Indeed the Act provides in s.67Q that the order is an order requiring the return of a child to a parent of the child.

6. The Court has the power pursuant to s.67T of the Act to make a recovery order given that the mother is, at the very least, a person concerned with the care, welfare and development of the child. In proceedings for a recovery order, the Court may, subject to s.67V, make such recovery order as it thinks proper. Pursuant to s.67V, in deciding whether to make a recovery order in relation to a child, the Court must have regard to the best interests of the child which are a paramount consideration.

7. The principles in respect of interim hearings are well known including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general and the Court is often in a position where it is unable to make findings of fact.  Even in such constrained circumstances, the Court is still required to determine the applications before it. 

8. Not only do these proceedings raise the issue of a recovery order, they also raise the issue of competing live with applications and an application for supervision of the mother’s time with the child.  In those circumstances, a risk assessment is to be undertaken. This is done by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.

9. There are a few agreed facts between the parties, as far as relevant they are as follows:

   a)The parties were in a brief relationship in 2018, which resulted in the birth of their only child X, who was born in 2019;

   b)The mother presently lives in rental accommodation with the lease being in the parties’ joint names. She had been living here with the child since early 2020;

   c)The father presently lives with his parents;

   d)On 27 August 2020, there was a text message exchange between the parties following which the father attended the mother’s home. There was then an altercation between the parties. The police were called, and the father left with the child;

   e)After their attendance at the mother’s home on 27 August 2020, the police issued a provisional apprehended domestic violence order for the protection of the father and the child;

   f)The mother attended B Hospital on 27 August 2020 and underwent a mental health assessment. She was discharged home the same day;

   g)The child has been with the father since 27 August 2020;

   h)There is presently an interim apprehended domestic violence order for the protection of the father against the mother. The child’s name was removed from the order. The mother is defending the matter; and

   i)The mother has been the child’s primary carer since birth. 

10. The father says that the mother’s behaviour is erratic and volatile, such that it poses an unacceptable risk of harm to the child if he was to be returned to her full-time care.

11. The mother denies that her behaviour poses any risk of harm to the child and says that the reason for her text messages on 27 August 2020 was to gain the father’s attention. She says that it is in the child’s best interest that he live with her, that she is his primary carer and primary attachment figure such that it may be a risk to the child if he was to remain separated from her.

12. Each party makes allegations of violence against the other.

13. The mother asserts that:

    a)The father was not supportive of her, for example she complains that “He never congratulated me on the birth, or told me that I did a good job of delivering our son.”

    b)The father sent her text messages saying she was a bad mother and that she should kill herself;

    c)That he has engaged in economic abuse by refusing to pay a share of the rent for the property where she and the child live;

    d)That he has degraded her by calling her “lazy, disgusting and pathetic” and that it was bad for the child to live in such a “filthy and dirty house”. The mother asserts her house is always clean and hygienic; and

    e)That the father emotionally manipulated her to obtain sexual favours.

14. The father raises some very serious allegations of violence against the mother.  The mother denies those allegations in their entirety.  The allegations include:

    a)In 2018, while the parties were in a motor vehicle with the father driving, the mother started hitting the father with an open palm, then wrapped a charging cable around the father’s neck, trying to choke him;

    b)On the day of the child’s baptism, the parties were in a motor vehicle together with the child. The mother started to hit the father in the motor vehicle, using her fists. The father says the mother told him that he didn’t spend any time with her at the baptism, but rather with his family. When the parties arrived at the maternal grandmother’s home the father tried to leave. The mother grabbed the father’s arm and then the collar of his suit. The father pulled away and left;

    c)In December 2019, the parties had agreed to go to C Shopping Centre together, but then their plans changed. The mother started driving towards the Region D (instead of back home) and then stopped on the side of the road and told the father to get out, which he refused. She then drove further, stopped again and demanded that he get out of the car. After the father refused again, the mother started hitting him with an open hand and punching him. The mother was hitting and punching the father while she was driving the car, the car was swerving and it crossed over to the other side of the road. The father then told the mother that he would get out the vehicle. The mother calmed down and the parties drove home. The child was in the car at the time; and

    d)On the child’s 1^st birthday, on the way back from an outing, the mother again became violent towards the father whilst the parties and the child were in a motor vehicle. The father was driving and the child was in the back. The mother was verbally abusing the father and she also hit him repeatedly. The mother threatened to kill the father. The father pulled the vehicle over and ran to a nearby service station. The mother then got in the driver’s seat and engaged in a pattern of driving towards the father to “bear down” on him, the father then crossing the road, the mother doing a u-turn and again driving towards the father. The mother then drove away and the father called his sister who came to collect him.

15. It seems that the above acts of violence were alleged to have occurred in circumstances where the parties’ relationship was discussed and where the mother was upset about either the father’s behaviour towards her and/or their relationship. It does not appear that the father has ever reported any of these incidents to the police. The father does however, rely on an affidavit of his sister, who gives evidence of the father making complaints to her about the mother’s behaviour at the time of these alleged incidents.

16. The father further alleges that when the child was about 3 or 4 months old, the mother sent him text messages saying that she had locked herself in a room with the child, and that the maternal grandmother was trying to get in. The father understood from those text messages that the mother was alleging that she and the child were at danger, so he drove over to her home. He sent her a number of text messages but nobody came out of the house. The father says that he is not sure if the mother was telling the truth about the incident at the time.

17. In late January 2020, the father says he received a long and concerning text message from the mother, alleging that the maternal grandmother was physically attacking her, including whilst the mother was holding the child.[1] The following day, the father received a series of text messages from the maternal grandmother, alleging amongst other things that the mother had “bashed” her the previous night, that she had just come out of hospital as a result of a hand injury, that the mother had “bashed” her to the floor with the child’s bike and that she had nearly passed out. The maternal grandmother alleged that she had a split lip as a result of this assault.  The father says he felt helpless after receiving these text messages because the mother was not allowing him to see the child and he had never been in a situation such as this before, and did not know where to turn.

    [1] This is the message the mother admits to sending but says that it was not the truth, rather that it was attention seeking behaviour from her

18. At around the same time, the father says he became aware that the maternal grandmother was moving out of the property where she had been living with the mother. By agreement between the parties it seems, the father assisted the mother to apply for a lease. The father says he did this, despite his reluctance, at the mother’s request as she had indicated that she would otherwise be homeless and there was no alternative option for the father as far as the child was concerned. The father is a joint lessee on the property where the mother and child were residing until late August 2020, and where the mother remains living. In submissions it was said on behalf of the father that his actions were in part a mitigation of the risk to the child which had become apparent after the text messages from the mother and the maternal grandmother with their cross-allegations of violence. 

19. The father also asserts that the mother engaged in manipulative behaviour where if the father refused to resume their relationship she would refuse to allow the father to spend time with the child.

20. The mother denies that she has perpetrated any violence against the father or her own mother. She says that she did send the father the Snapchat messages alleging that she had been assaulted by the maternal grandmother in the presence of the child, but denies that the actual events occurred. She says she was just trying to get the father’s attention.

21. If what the father says is true then there are potential risks to this child’s safety, as a result of the mother’s aggressive behaviour. On the father’s case, the mother will lash out and become violent and has done so in the presence of the child. It was submitted that such violence was not only towards the father but also towards the maternal grandmother.

22. If what the mother says is true, that is, that her behaviour is attention seeking, it is still problematic but likely to be less of a risk to the child than the behaviours which the father alleges.

23. The evidence in respect of the alleged altercation between the maternal grandmother and the mother is a prime example of the difficulty facing the Court in determining this matter. The father’s evidence is that the maternal grandmother told him of a very serious physical assault by the mother upon her, which caused her to pass out. The mother denies any violence. Her message to the father (which she says is untrue) alleges violence by the maternal grandmother against her.

24. It is difficult to make findings on evidence which has not been tested, and particularly in circumstances where there is no evidence from the maternal grandmother. However, it seems that unless there was some sort of incident between the mother and the maternal grandmother on or about 25 or 26 January 2020 – then both the mother and the maternal grandmother were being dishonest with the father and making up a violent event where it was alleged that the child was exposed to family violence.[2]

    [2] The Court accepts that there is the possibility that the maternal grandmother did not send the father the said text messages, but there is no suggestion in the evidence to date that this was a fabrication by the father

25. The parties have been more than unkind to each other in the text messages which have been exchanged between them. The father’s text messages are particularly concerning in the context of his allegations that the mother’s behaviour is volatile and erratic and that she becomes violent. This is in circumstances where the child has been in her primary care for his whole young life. The father has sent the mother text messages, some of which read as follows:

    a)On 3 May 2020 “… you are the worst human being I have ever met…” and “Can’t wait for the day you die.”

    b)On 8 July 2020 “Go die Ms Pearcy, you are a pathetic mum and disgusting how you treat and fail to look after X. Fuxk off.”

    c)On 10 July (or 16 August) 2020 “You disgust me.” and “Go fuxking die in a hole. I hate you…”

    d)On 15 August 2020 “No Ms Pearcy, you’re a lonely nasty piece of shit who knows she’s a piece of shit and is so depressed and angry in life that all she tries to do is hurt everyone around her to try and make them feel as bad as she does. That’s why you try to live you try to live this happy amazing life on social media to cover up the dark depressing loser that she is in real life.”

    (errors in original)

26. The mother’s responses to the father’s text messages are not much better, but on their face appear to be not as abusive or as nasty.

27. The events of 27 August 2020 are concerning.

    a)Firstly, the following text messages were exchanged between the parties:

    Mother:     “Mr Radden.”

    Father:“It is absolutely ridiculous you are wasting money like that. I will take him today.”

    Mother:     “Thankyou I want to die”

    “when are you getting him”

    Father:     “After his nap”

    Mother:     “Why not now

    “I can’t do it anymore”

    “I can’t do it anymore I hate myself so much he deserves a better mum”

    “You can give that to him”

    “You can give him the family he deserves”

    “I can’t do it anymore”

    “Can you come now”

    Father:     “I’m working”

    Mother:“I feel so sick Mr Radden I can’t do it anymore like I just give up he can be with you and the girl your talking too I can’t be reminded everyday”

    “I just can’t do it”

    “I haven’t eaten for 3 days and hardly slept I just can’t believe all this has happened”

    “And I hate X seeing me like this”

    “I’m pathetic and need to just go”

    “Please can you just come now”

    Father:“I’m not seeing anyone so stop making shit up in your head”

    Mother:“You are I’ve seen it I know you are aloud to be happy I just can’t be reminded every day what I lost I just can’t do it anymore I wish I kept it all to myself and everything would be fine but I fucked that up I just can’t do it I’m broken I just can’t shake this pain and hurt off I’ve tried I just can’t do it”

    “I just don’t think I can go through life like this and I don’t want X to have to suffer with me”

    “I couldn’t even take the bins out I can’t even go outside I just don’t want to face life I just want everything to end I just feel so sick”

    Father:“Can you have everything packed for when I get there. His favourite books and toys too and his baby monitor”

    Mother: “Okay”

    “Are you over me?”

    “Mr Radden”

    “Are you over me? Do you want to move on without me?”  

    “Mr Radden”

    Father:“Have him ready for me to pick him up”

    Mother:“Ok but can you answer me please like please just answer”

    “Why are you hurting me so much please just answer”

    “I know you hate me but can you not hurt me so much”

    “I can’t take it”

    Father:“I am not hurting you”

    Mother: “You are so much”

    “You won’t answer and you just want me gone”

    “I just wish you cared even a little bit”

    “I am so stuck on how to get out of feeling like this”

    “When will you be here”

    “I’m so sorry”

    “From the bottom of my heart I’m so deeply sorry for every bit of trouble I have caused”

    “Ok”

    “So you won’t tell me if you are moving on from me for good?”

    “Can we talk on the phone on your way since your just getting him and going”

    Father:“There is nothing to talk about”

    Mother:“For me there is this is why I’m so very upset”

    “Are you moving on from me for good?”

    “Why are you ignoring my question”

    “Can X talk to you”

    “?”

    Father:“What are you even talking about”

    Mother:“Can you answer”

    “Why can’t you just talk on your way”

    (errors in original)

    b)On the mother’s case, the father attended the mother’s home after she sent him the text messages referred to above. After a short discussion between the parties, the father said he was taking the child and “You need to get help with your head.” The mother tried to stop the father from taking the child but he pushed her against the wall. He then ran outside whilst holding the child, and pushed her against the shed. The mother alleges the father pushed her again (possibly twice) and said “I am going to take him and you will never see him again.” The mother then called the police.

    c)On the father’s case, he attended the mother’s home to pick up the child. As he was leaving with the child, after the parties had a chat for about 15 minutes, the mother punched him in the left side of the face from behind. He then pushed the mother away to protect the child from being hit. As he was trying to leave, the mother again came towards him punching him on the face and upper body. He yelled for her to stop and pushed her away. All this was occurring whilst he was holding the child. As the father pushed the mother away, she grabbed his shirt and ripped it and scratched his neck. The mother then called the police.

1. There is no mention in the statement made to the police by the father or the application for the apprehended domestic violence order that the child was injured during the altercation, yet the father’s evidence to this Court is that he was hit by the mother whilst she was hitting the father and suffered a black eye as a result. The mother denies the child was injured by her. It may be though, having regard to both parties’ evidence, that the child was caught in the scuffle between the parents and could possibly have been injured.

2. Certainly, it is agreed between the parties that the father attended the mother’s home to pick up the child, that they had a discussion, that the father then tried to leave with the child and that the mother tried to stop him.

3. There is no evidence in the father’s case that he had any real or genuine concerns that the mother would self-harm after receiving her text message earlier that day, or that the child was at risk. Indeed, the tone of his text message to the mother indicate that he appeared to be annoyed at her for texting him as she did and that he could not come to get the child sooner as he was at work.

4. If the father was concerned about the child’s safety at the point of time of receiving the text message from the mother indicating she wanted to die, it is highly unlikely that he would have remained at work and only attended the mother’s home later that day. This is said in the context of assessing the risks the father alleges.

5. The mother attended the father’s home after being discharged from B Hospital that day to collect the child, but there was no-one at home. The mother was told that the father had indicated that he would not be returning the child or telling the mother where the child was. The father has refused to return the child to the mother’s care.

6. The father did not apply to the Court for any urgent relief as at 27 August 2020, any time prior to that day, or indeed any time after that day until he was served with the mother’s initiating application. It was only after the mother sought urgent recovery orders that the father himself applied for Court orders for the child to live with him.

7. Not all of the allegations made by the parties are the subject of analysis mentioned in these reasons.  That does not mean that they have not been considered.  Consideration does not mean discussion. 

8. The child has not spent any face to face time with the mother since the 27 August 2020, although there are some discussions between the parties for the paternal aunt to supervise time whilst the parties are awaiting the Court’s decision.

9. The child must be missing his mother, and she, no doubt, is missing him.   

10. The mother denies that she is volatile, violent or aggressive. If she is all these things, and she keeps being in denial about it, then her parenting capacity might be significantly impaired and she might pose a risk to the child. There may be organic reasons for the way she is described to be acting. There may be other reasons, such as for example being emotionally manipulated. Or there may be no reason at all, including because these events as alleged by the father simply did not occur. However, it is the risk to the child if she is acting in the manner alleged which the Court has to weigh up at this interim stage of the proceedings.

11. In the Court’s experience, the stigma of mental illness, mental health problems or indeed emotional reactions and the perceived effect of those matters on parenting orders, is so powerful that it stops many people from acknowledging how they feel or how they act. Simply because a person might have a particular emotional reaction or a particular health issue does not of itself mean that their parenting capacity is impaired. What impairs parenting capacity is a lack of insight into own actions and the effect thereof. There is no perfect parent. The mother has in any event, sought medical assistance and is attending fortnightly counselling. There is evidence before the Court from the mother’s treating psychologist which speaks positively of the mother psychologically. 

12. If the father is being untruthful or is exaggerating in his evidence about the alleged incidents, then this speaks of a manipulative person. Such a view may be supported by findings that the father was intentionally psychologically abusive towards the mother in circumstances where he knew or strongly suspected that the mother was struggling to cope (even if she wasn’t admitting it). The suggestion that the mother should go and die, particularly to a person who is feeling vulnerable, whether because she is feeling lonely, whether because she is young and has the full-time care of a baby, whether because she is just overwhelmed, or even if she is none of these things, is not just mean, but potentially abusive. This was done in the context of where the relationship between the parties seemed to be a yo-yo, where there was and remained some sort of emotional attachment between them and certainly a sexual attachment.

13. It is difficult to accept that the father was truly concerned or has been truly concerned about the child in circumstances where for the entirety of his relationship with the mother she has according to him displayed behaviours of the sort he describes. On his evidence, he has done nothing by way of seeking legal advice, approaching the police, obtaining advice from social workers or even his family, as to how he might best protect his baby from the mother’s volatile, violent and aggressive behaviour as he describes it. When these matters were raised by the Court, submissions were made that he had done other things to assist the mother to ensure that the child was safe, such as assisting her with a lease.

14. The father’s affidavit, while done fairly quickly, was replete with negative comments about the mother. There was no real acknowledgement about the care she has provided to the parties’ young child. There was rather a submission made that because the mother did not have family support available to her and the father did, he should have the primary care of the child even though he worked full-time and the mother worked part-time.

15. The orders which the Court makes today are made with limited evidence, and they may only be in place for a very limited time depending on what happens further in these proceedings.  They are only interim orders.  If there is other evidence that comes to light, or other events which occur, there is no doubt that a prompt application will be made by either one or both of the parties.

16. Having regard to all of the evidence presently before the Court and in undertaking the risk assessment required of it, the Court does not find that the mother (or her behaviour) poses an unacceptable risk of harm to the child. She has been the child’s primary carer and is no doubt the child’s primary attachment figure. There is no evidence as to the impact on the child of the separation from his primary carer, however, in the Court’s experience such impact might be significantly negative.

17. The mother has been meeting all of the child’s needs at least since separation. The father has spent limited and sporadic time with the child. The mother works part-time while the father works full-time.

18. It is in the child’s best interest that he be returned to the mother and remain living there whilst spending regular time with the father. The fact of Court orders will likely lessen the tension between the parties in so far as arrangements need to be made between then as to when the child is to spend time with the father.

19. In respect of parental responsibility, given that there is no evidence of any immediate long-term issues which might require a parental decision, the Court declines to make any order for parental responsibility.  This leaves the situation in accordance with the relevant legislative provisions.

20. Further, whilst it is not a matter which the Court had previously raised with the parties, it seems appropriate in this matter for an independent children’s lawyer to be appointed. 

21. For all of these reasons, orders as set out at the forefront shall be made.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 22 September 2020