PERIN & PERIN

[2020] FCCA 2877

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERIN & PERIN [2020] FCCA 2877

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 4 & 3 – recent separation – significant allegations of family violence and drug usage – nature of interim hearing – best interests – assessment of risk.  

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Applicant: MS PERIN

Respondent: MR PERIN

File Number: ADC 4487 of 2020

Judgment of: Judge Brown

Hearing date: 19 October 2020

Date of Last Submission: 19 October 2020

Delivered at: Adelaide

Delivered on: 22 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Childs

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Counsel for the Respondent: Mr Moore

Solicitors for the Respondent: Georgiadis Lawyers

ORDERS

1. That in order to give effect to the time spending outlined in order (2) hereof, the father deliver the children to the mother at 5.00pm on Thursday at Location A, C Road, Suburb D SA.

Until further or other order:

1. That the children X born 2016 and Y born 2017 (“the children”) live with both parents as follows:

   (a)With the mother from 5.00pm Thursday until 6.00pm the following Sunday, commencing 22 October 2020 and each following week thereafter;

   (b)With the father from 6.00 pm on Sunday commencing 25 October 2020 until 5.00pm the following Thursday and each following week thereafter.

2. That handovers occur at Location A, C Road, Suburb D SA or as agreed in writing between the parties.

3. That the time spending as outlined in order (2) hereof can be varied for special occasions, as the parties may agree in writing.

4. Without admission, that both parties be restrained and an injunction issue restraining each of them from:

   (a)Denigrating the other party or allowing any other person to do so in the presence of or within the hearing of the children;

   (b)Abusing, harassing or threatening the other party or allowing any other person to do so in the presence of or within the hearing of the children.

   (c)Discussing these proceedings in the presence of or in the hearing of the children or allowing any other person to do so;

5. Without admission, the mother be restrained and an injunction issue restraining her from:

   (a)Bringing the children into contact with the maternal grandmother while the children are in her care;

   (b)Consuming any illicit substances or medication other than that duly prescribed by a qualified medical practitioner during any period that the children are in her care, or from bringing them into contact with any person who has done so.

6. The parties participate in one (1) random urine drug screen test within twenty-four (24) hours of being requested by the other party’s solicitor to submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 with a copy of the results of such tests to be provided to the other party’s solicitor as soon as they become available.

7. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 3 November 2020 at 9.30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

8. Further consideration of the matter is adjourned to 4 December 2020 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4487 of 2020

MS PERIN

Applicant

And

MR PERIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment concern interim arrangements for a family in crisis.  As the case relates to two very young children, who must be heavily reliant on adults to attend to their needs – both physical and emotional – it is particularly concerning.

2. From the court’s perspective, the crisis is intensified by the fact that the case arises shortly after the parties separated, in difficult and controversial circumstances, leading to them intensely mistrusting one another.

3. Their court documents have been hastily prepared and each is full of allegations of misconduct against the other, which the court simply cannot resolve at an interim hearing stage.

4. Yet, if the allegations are true, it must mean that the young children concerned are at some risk of coming to harm.  However, the court cannot ascertain what has occurred merely from reading affidavits, particularly given those affidavits are in conflict with one another.

5. In these circumstances, the job for the court, as best it can, is to assess the degree of risk arising from the material available, notwithstanding the inherent limitation of the interim hearing before it and the lack of independent evidence, including expert evidence, corroborating or otherwise, the conflicted evidence of the parties concerned. 

Background

1. The parties in the case are Mr Perin (the father) and Ms Perin (the mother).  They are the parents of X born 2016 and Y born 2017.

2. The parties married 2015 and finally separated on 24 July 2020.  At the time, the family was living in rented accommodation in suburban Adelaide. 

3. In mid-August the mother obtained new accommodation for herself and X and Y, in another suburb of Adelaide.  The father obtained his own accommodation.  The parties now seek orders that the children live with each of them, albeit that the mother is open to shared care.

4. It was the mother’s understanding that the parties had agreed to share the care of the children, following separation, so that there would be a minimum amount of disruption, in respect of their childcare.  However, when the mother returned to collect the children from the father, in order to give effect to this plan, he refused to allow them to leave with her. 

5. The children have been in the predominant care of the father since and the mother has had extremely limited time with them, subject to the father’s rigorous supervision and, at other times, through electronic means.  In these circumstances, the mother commenced these proceedings as soon as she could, in mid-September. 

6. It is her case that although she was in paid employment prior to separation and the father was not, she was X and Y’s primary carer.  In these circumstances, she asserts that the father withholding the children from her is typical of the type of coercive and controlling behaviour, to which she has been subject, by the father, during their relationship.

7. This behaviour includes being abused and denigrated by the father and being stalked, by him, through tracking devices installed in her car and on her phone.  The mother seeks an urgent recovery order in respect of the children and thereafter that they be cared for, in a split week regime, built around her employment commitments, as a professional. 

8. In her affidavit material, filed in support of her application, the mother deposes as follows:

   “I wish to immediately restore the arrangements we agreed upon to share the children before we ended the lease on the apartment we had shared.

   I do not believe what is happening to them now is their best interests.  The children are out of their settled routine.  They are isolated from childcare and early learning and from other social interaction.  They are deprived of their mother's love and care.  They are distressed and confused and I believe this is causing them psychological harm.

   I fear Mr Perin is not behaving rationally and I am starting to fear for the children’s safety and psychological wellbeing.

   I am concerned that Mr Perin is attempting to use the children for financial gain and to put off a search for employment and also to punish me for no longer tolerating his controlling behaviour.

   I am concerned that Mr Perin is making attempts to further control me at significant cost to the children.”[1]

   [1]  See wife’s affidavit filed 18 September 2020 at [36]-[40]

9. The father has a diametrically opposing view of the parties’ relationship.  He asserts that it was he, who was the children’s primary carer and it was the mother who was the abusive and reactive partner, assaulting him frequently and subjecting him to stinging verbal abuse. 

10. He further alleges that the mother abused drugs, both illicit ones and those provided by prescription, during the parties’ relationship, which is potentially very dangerous for the children.  

11. In his affidavit material, the father has deposed as follows:

    “When the Applicant was breastfeeding our daughter, Y, I believe the Applicant was taking ‘Duramine’ which is a weight loss medication. It can be fatal for feeding infants and I believe that the Applicant was obtaining this drug from the maternal grandmother and a person whom she met online.  I do not believe the Applicant was prescribed this drug.

    I believe the Applicant consumes illicit drugs and I believe it would be beneficial to have the Applicant checked for drugs with a blood and urine test, at her cost.  I am not working and cannot afford to pay for it.

    I am willing to be drug tested as often as required if the Applicant or this Honourable Court so orders.  I do not smoke illegal drugs.  I am the primary carer for the children and cannot work, I can only afford those tests that Medicare will cover.

    The Applicant constantly and for no reason screams and yells at me in front of the children.  She has told me to ‘go f*/kill yourself*’ whilst holding Y in her arms.  I would tell her often not to do swear or scream at me in front of the children, but she would ignore me.”[2]

    [2]  See father’s affidavit filed 18 October 2020 at [68]-[71]

12. The father has provided no supporting evidence to support his allegations of drug abuse, which the mother denies.  She is willing to undergo a random drug screen test and abide by an injunction restraining her from bringing the children into contact with her mother, whom the father asserts has abused illicit drugs and allows drug users to share her accommodation. 

13. The father has also made extremely personal allegations of misconduct, against the wife, alleging that she was unfaithful to him, during the parties’ marriage and exposed the children to these affairs, which included her uncle.

14. It is my impression that there is a significant emotional component to the parties’ dispute at present.  During the submissions of the father’s solicitor, Mr Moore, the father conceded that Y was being breastfed up until she was withheld from her mother and the child herself has been upset at not being able to interact with her mother.  This concession gravely concerns me. 

15. It is the mother’s case that the father is a perpetrator of quite serious family violence and is utilising the children as a means of control against her, whilst the father asserts that the mother is out of control, for a variety of emotional and drug related reasons.

16. From the court’s perspective, these allegations are impossible to resolve at this stage, given the contradictory nature of the evidence.  In these circumstances, there is a need for the urgent involvement of a family consultant, who will be able to report back to the court as to the dynamic currently occurring in the family.

17. Fortuitously, the parties can have an appointment, with a family consultant, who will report back to the court, on 3 November 2020 at 9:30am.  In these circumstances, the task for the court is to determine arrangements for the care of these young and vulnerable children in a period of around a fortnight.

18. In this context, the mother has indicated a willingness to undergo a random drug screen test, although she does not concede that such a test is necessary.  In addition, she will agree to the husband’s demand that the children not be brought into contact with her family and she herself will not use any form of drugs, although once again, she does not concede that these measures are warranted in her case. 

19. For his part, the father has not formally made any proposal for the children to spend time with their mother, other than as the parties agree.  He seeks orders, on both a final and interim basis, that the two children live with him. 

20. As a consequence of the parties’ respective notices of abuse, the Department for Child Protection has provided a report to the court.  The Department will not intervene, in the case, at this stage.  The concerns reported to the Department are summarised as follows:

    “The nature of concerns reported include; domestic violence perpetrated by the father against the mother with the children present, children exposed to the father’s poor behaviour; threatening, manipulative and coercive towards mother and children. The father withheld the children from the mother. NSW child protection history indicates Y presented to hospital with an unexplained left ulna fracture (towards elbow). It was reported that the parents could not explain how Y (sic) got the injury though it is possible sibling X caused it. Allegations the mother has a prescription medication issue (using tramadol while breast feeding Y).”

21. These summary is concerning.  It indicates some form of departmental involvement in another state and a relatively serious injury have occurred to a child, which has not been adequately explained.  It also indicates a previous pattern of a child being withheld in the context of parental disputation.

22. Clearly, there is an urgent need, pending the court obtaining more evidence, for the court putting in place a clear regime for the care of the children.  In my view, given the likely significance of the children’s relationship with each of the parents, this must also give accord to protecting the children from suffering some form of psychological harm as a consequence of being deprived of a significant level of relationship with one of their parents.

23. At the same time, the court cannot ignore protective concerns relating to drug abuse.  However, in evidentiary terms, the only evidence of drug abuse relies on the father’s allegations of these matters.  There is no independent corroborative evidence to support these allegations, which do not sit comfortably with the fact that the mother has remained in the paid workforce and been able to obtain rental accommodation for her.

24. It is also noteworthy that the allegations arise in the context of a particularly vitriolic and emotionally laden dispute, which occurs soon after their separation, to which both parties must necessarily be adjusting.

Legal principles applicable

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 (“the Act”).

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

5. There are two primary considerations, which are as follows:

   “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.”

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).

8. In this case, the court is essentially called upon to assess the degree of risk that the alleged anti-social conduct of either the father or the mother will cause some form of physical or psychological harm to these very young children.  In each case, the allegation centres on issues predominantly relating to family violence, particularly in the context of the parties’ difficult separation.   

9. Ancillary to these concerns are the issues relating to the father’s allegations of drug misuse, particularly in respect of the prescription drug Duramine (although the DCP notification refers to Tramadol).  In this context, I note that there is no evidence (apart from the reference to Y’s fracture) of the child coming to some form of verified harm in respect of this alleged drug usage. 

10. At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made.  As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case. 

11. In Deiter & Deiter,[3] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

    [3]  See Deiter & Deiter [2011] FamCAFC 82

12. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

13. At the same time as it must assess these risks, the court must not be blind to the danger that the children concerned will be deprived of the benefits of having a meaningful level of relationship with one of their parents; in this case, their mother. 

Conclusions

1. In my view, it must be the case that the children know their mother well.  The father concedes that both children were breastfed and Ms Perin was part of their household until recently.  As such, it appears clear that the children must have a significant level of relationship with their mother, which the father has disturbed. 

2. In these circumstances, I am concerned that the father’s unilateral actions have deprived the children of these benefits and brought about a significant change in long standing arrangements for their care unilaterally.

3. Abuse can constitute not only physical harm but also the harm which follows from the care arrangements for a child being abruptly changed.  It is also noteworthy, I think, that the father concedes that Y, in particular, has been exhibiting distress at being isolated from her mother.  This is particularly noteworthy given the issue of the child’s breast feeding, which Mr Perin’s conduct has disrupted.

4. I am not in a position to ignore the allegations of drug abuse made by the father.  However, there is no compelling evidence to establish that the children have actually experienced some form of neglect as a consequence of this behaviour, which is not supported by concrete evidence.  Neither party asserts that the children were not thriving prior to the parties’ obviously difficult separation.

1. In the short to medium term, whilst awaiting advice from the family consultant, I am satisfied that it would not represent an unacceptable risk to these children’s safety if they spend extended periods of time, in their mother’s care, including overnight time.   

2. Such an outcome, in my view, will represent the best possible return to prior care arrangements, if that is at all feasible, given the fact of the parties’ separation, and will bring about some form of  normalisation of the children’s relationship with each of their parents, each of whom claims to have been their primary provider of care.

3. Each party asserts that the other has behaved in a coercive and controlling manner, which meets the descriptor of family violence provided by section 4AB of the Act. Whether the children have been exposed to this behaviour is more difficult to ascertain but cannot be ruled out.

4. The allegations are serious.  What are the longer term emotional consequences, for the children, is not known, as yet.  If the mother is out of control and has abused the father, in the presence of the children, this is compromised parenting. 

5. The same is true of the mother’s allegations made against the father.  The court must be concerned at the allegations of control arising from the mother’s allegations of electronic surveillance.  It is even more concerning if the children themselves are used as instruments of control.

6. However, as indicated above, it is not uncommon for allegations of family violence, in proceedings such as these, to be explicable on the basis that they relate to the difficult and emotionally fraught situations arising from the situation created by the end of a relationship. 

7. For obvious reasons, individuals do not behave well when placed under the pressure inherent in any separation.  With the end of the relationship in question, this may lead to a lessening of tension and significantly reduce the risk of children being further exposed to family violence.

8. In this context, I must still make some sort of assessment as to whether there are elements of coercive and controlling behaviour, in either party’s conduct, and what are the consequences of this for the children, in both emotional and physical terms. 

9. At first instance and whilst acknowledging that I am not in a position to make any concluded finding of fact, I am concerned about the inherent controlling aspects of the father’s behaviour, which has included the children.  Over a reasonably lengthy period of time, he did not permit the children to interact with their mother in any meaningful way.

10. I reach this conclusion, on the basis that, if the mother’s assertions are true, it is the father who represents a significant level of risk to the children, by not supporting their relationship with their mother, which had hitherto been extremely important to them. 

11. In my view, the evidence indicates clearly that he has withheld the children from their mother, notwithstanding their emotional discomfort at such an outcome.  This cannot be in the children’s best interests. 

12. For all these reasons, in the short to medium term, I propose to make the orders sought by the mother, which are designed to fit around her work commitments and will see the children each spending meaningful amounts of time with each of their parents. 

13. At this interim stage of proceedings, it is not appropriate that the presumption of equal shared parental responsibility be applied [section 61DA].  However, following the pathway provided by the Full Court in Goode & Goode,[4] it is still open to the court to consider an equal time regime, for the care of a child, if it considers that such an outcome is calculated to be in the best interests of the relevant child.

    [4]  Goode & Goode (2006) FLC 93-286

14. In this matter, although I have grave reservations about the capacity of the parents to implement such a regime, chiefly because of the clear deficits in the communication capacity and ability to solve problems consensually, I consider it likely to be the best outcome for X and Y at this early stage, until I hope (but cannot guarantee) relations between them settle down.

15. The regime will see the children spending significant periods of time with each of their parents – each of whom claims to be their historical primary carer.  It will also spread the risk in circumstances in which each parent asserts that the other represents a significant threat to the children.

16. In addition, in my view, the injunctions, including the requirement for drug testing, to which the mother has assented, represent a proportionate degree of response to the risks raised by the father. 

17. I anticipate that further information will be to hand following the Family Dispute Resolution Conference, which fortunately can be scheduled relatively quickly.  Thereafter, I will adjourn the case until December to ascertain what further steps are required.  These are likely to include whether a more detailed family report is required or, given the allegations of family violence, whether an independent children’s lawyer should be appointed.

18. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 22 October 2020