PERONI & RUNTING
[2017] FamCA 743
•22 September 2017
FAMILY COURT OF AUSTRALIA
| PERONI & RUNTING | [2017] FamCA 743 |
| FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where there are five children of the parties’ relationship – Where the two youngest children are the subject of these proceedings – Where there are allegations by both parties of family violence against the other – Where the mother has concerns regarding the father’s mental health – Where the central issue is whether the children will be exposed to an unacceptable risk of physical and/or psychological harm in spending time with the father – Where the mother has been the primary carer of the children – Section 60CC considerations – Orders made for the children to spend time with the father on one day each week. |
| Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 61DA, 65DAA |
B and B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling [1998] FamCA 19
| Johnson and Page (2007) FLC 93-344 |
| APPLICANT: | Ms Peroni |
| RESPONDENT: | Mr Runting |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip Wilkins & Associates |
| FILE NUMBER: | SYC | 342 | of | 2017 |
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 12 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gardiner |
| SOLICITOR FOR THE APPLICANT: | Boyce Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Fermanis |
| SOLICITOR FOR THE RESPONDENT: | Fayrose Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Wilkins of Phillip Wilkins & Associates |
Orders
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Order 3 of the Consent Orders made 22 May 2017 be discharged.
The children B, born … 2011, and C, born … 2014, spend time with the father:
(a) from 10.00am to 6.00pm each Sunday; and
(b) such other times as agreed between the parties.
Each party provide the other in writing details of any change to their address and/or telephone number within 24 hours of such change.
AND THE COURT NOTES THAT:
A. Subject to these orders, the interim parenting orders made by consent on 22 May 2017 remain in full force and effect.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peroni & Runting has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 342 of 2017
| Ms Peroni |
Applicant
And
| Mr Runting |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by the father to vary interim parenting orders that were made by consent on 22 May 2017 (“the May orders”). The May orders were made as an interim arrangement pending receipt of a Child Responsive Program Memorandum prepared by a Family Consultant attached to the Sydney Registry of the Family Court (“the Memorandum”). The May orders provided for the parties’ two youngest children, B and C, to live with the mother and spend limited time with the father on two days per week.
The Memorandum was received on 1 August 2017. The father has sought a progressive increase in the amount of time that the two youngest children spend with him. He proposes that time increasing to overnight time after he completes a parenting course, as recommended in the Memorandum. That course will conclude on 7 December 2017.
The application is opposed by the mother. She contends that the May orders provide for appropriate parenting arrangements in the context of information presently available to the parties and the Court.
The Independent Children’s Lawyer (“ICL”) submits that it is appropriate for there to be some increase in the amount of time that the children spend with the father. The ICL does not, however, support that time increasing to the point where the children spend overnight time with the father.
I have made orders consistent with the recommendations of the ICL with respect to the spend time with arrangements.
Background
The parents were married in 1999 and separated on 25 February 2016. The mother lives with the parties’ five children in the former matrimonial home in Suburb G. The father lives with a flatmate in Suburb R.
These proceedings only concern the parties’ two youngest children:
·B, who was born in 2011; and
·C, who was born in 2014.
For convenience, unless the context otherwise indicates, B and C will be referred to as “the children”.
In addition, the parties have three older children:
·E, who was born in 2000;
·S, who was born in 2002; and
·F, who was born in 2004.
Unfortunately, E has significant health challenges including severe epilepsy. As a result, she requires constant care. The mother contends that this places significant physical and emotional strain upon her and other members of the household, including the children.
The May orders provided for S and F to spend time with the father in accordance with their wishes. They have not elected to spend time with their father.
The mother alleges that, during the course of the parties’ relationship, she was subject to family violence perpetrated by the father including instances of physical assault. The father denies that he has physically assaulted the mother and similarly contends that it is the mother who has engaged in acts of family violence.
The mother also contends that the father has engaged in acts of violence against the three eldest children. This is denied by the father. The mother’s account received some corroboration in the form of information provided to the Family Consultant by S. The father contends, however, that the Court should not accept the veracity of S’s account of events because, in the course of therapy, she acknowledged lying.
The mother acknowledges that it is appropriate for the children to have a meaningful relationship with the father. However, the mother contends that the amount of time the two youngest children spend with the father should be limited as a result of her concerns that they are at risk of suffering physical and/or psychological harm in his care.
In that respect, the mother alleges that the father has mental health challenges. The mother further contends that the father becomes easily frustrated and, in those circumstances, he is quick to lose his temper. The mother states that, if that occurs, the father can become violent and physically lash out against herself or the children.
The mother therefore contends that the children are at risk of psychological harm in circumstances where they may be in a situation where they witness the father losing his temper. The mother also contends that the children are at risk of physical injury if, as result of losing his temper, the father becomes violent towards them.
As noted, the father denies the mother’s allegations of physical violence. The father acknowledges that he has suffered from periods of anxiety. He contends, however, that he has obtained appropriate treatment in respect to that condition. The father asserts that his contentions are supported by documents produced by therapy providers in response to subpoenas served upon them in the course of these proceedings. That documentation, the father contends, establishes that he is not predisposed to becoming violent and there is no basis for the assertion that the children are at risk of either psychological or physical harm in his care.
This is demonstrated, the father asserts, by the fact that, in the period that he has had unsupervised time with the children since the May orders, there has been no complaint regarding his conduct towards the children.
The May orders
The May orders relevantly provided:
1. That order 2 of the orders made on 22 March 2017 be discharged.
2. That [S] born … 2002, and [F] born … 2004, spend time with the father in accordance with their wishes.
3. That [B], born … 2011, and [C] born … 2014, spend time with the father as follows:
a) each Tuesday from 4pm to 6:30pm; and
b) each Sunday from:
i) the date of these orders until 12 June 2017 from 12pm to 2pm;
ii) 12 June 2017 to 13 July 2017, from 12pm to 3pm; and
iii) 13 July 2017 and thereafter from 12pm to 4pm;
c) or as otherwise agreed by the parties in writing.
4. For the purpose of order 3 the father shall collect the children from the home of the maternal grandmother at the commencement of time and return them to the home of the maternal grandmother at the end of that time.
5. That within 7 days the father shall attend upon [C's] GP [Dr K] at [T General Practice], to inform himself of [C's] medical condition and treatment.
6. That the father will ensure that his car is fitted with appropriate car seats for [C] and [B].
7. Without admissions, the father be restrained from bringing the children into contact with his partner during the time the children spend with him.
8. That within 24 hours the father provide the mother with details of his address and telephone number.
applications
The father’s application
The orders sought by the father were set out in his Case Outline as follows:
1. That orders 3 and 7 of the Consent Orders dated 22 May 2017 be discharged.
2. That the children [B] born … 2011 and [C] born … 2014 spend time with the father as follows:
a. For a period of six weeks, from 10.00am to 6.00pm each Sunday.
b. For a period six weeks commencing from the expiration of the six-week period referred to in order 2(a) above, from 10.00am to 6.00pm each Saturday and Sunday.
c. Commencing from the expiration of the six-week period referred to in order 2(b) above, from 10.00am Saturday until 3.00pm Sunday each week.
d. At all other times as agreed between the parents in writing.
3. The father’s time with the children in accordance with order 2(c) above shall not commence until such time that the father has complete the Circle of Security course.
The mother’s application
The Minute of Order proposed by the mother, set out as an annexure to the mother’s Case Outline, was as follows:
1. That the father’s application be dismissed.
2. That the children live with the mother and spend time with the father in accordance with Orders 2 to 7 of the Orders in the proceedings dated 22 May 2017.
3. That the father provide the mother with details in writing of any change to his address and/or telephone number within 24 hours of such change.
4. That the father pay the mother’s costs of and incidental to this application.
The ICL’s proposed orders
The orders proposed by the ICL were set out in paragraph C of the ICL’s Case Outline and were as follows:
1. Orders 3 and 7 of the Consent Orders made 22 May 2017 be discharged.
2. The children [B], born … 2011, and [C], born … 2014, spend time with the father
a)from 10.00am to 6.00pm each Sunday; and
b)such other times as agreed between the parties.
Evidence and witnesses
The mother relied upon the following documents:
·Initiating Application filed 20 January 2017;
·Child Responsive Program Memorandum dated 1 August 2017; and
·Affidavit of the mother sworn 12 April 2017.
The father relied upon the following documents:
· Response to Initiating Application filed 2 March 2017;
· Affidavit of the father sworn 1 March 2017; and
· Affidavit of the father sworn 3 May 2017.
The ICL relied upon the following documents:
· Child Responsive Program Memorandum dated 1 August 2017.
In addition, the father tended the following documents which were produced under subpoena:
·Documents produced by the T General Practice;
·Documents produced by Ms H psychologist;
·Documents produced by the D Centre;
·Documents produced by M Program;
·Documents produced by the Department of Family and Community Services; and
·A document acknowledging admission to a Circle of Security Parenting Programme.
The mother tendered correspondence between legal representatives together with a tender bundle consisting of documents from:
·the NSW Police Force;
·Z Group; and
·Business Y.
parenting matters
The Law - Concepts and Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[1] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (section 43(1)(c)), and to protect them from family violence (section 43(1)(ca)).
The presumption of equal shared parental responsibility
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, section 61DA(3) provides that:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In light of the competing allegations made by the parties regarding the occurrence of family violence, I am satisfied that it is not appropriate for the presumption of equal shared parental responsibility to be applied in these proceedings. Accordingly, there is no obligation to consider the practicality of the children spending equal and/or substantial and significant time with each parent. In those circumstances, the Court has a broad discretion to make appropriate parenting orders having regard to the legislative criteria for establishing the best interests of the children.
Paramount consideration in making parenting orders
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in section 65DAA.
Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all section 60CC factors, the parties acknowledged that the central issue in these proceedings is balancing the primary considerations set out in section 60CC(2) against one another. Those considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, section 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).
Additional Considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. I will discuss those considerations in greater detail below. Those considerations can conveniently be grouped under the following topics:
· Issues relating to the children - their views, level of maturity, culture and relationships.
· Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
· Issues of family violence.
· Effect of change.
· Practical difficulty of implementation of orders.
· Avoiding further proceedings.
· Other relevant matters.
Approach in interim parenting proceedings
In Banks and Banks,[2] the Full Court adopted a common sense position stating:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.
[2] [2015] FamCAFC 36 at [48].
In these interim proceedings the central issues that require determination relate to the primary considerations. That is, the benefit of the children having a meaningful relationship with both parents on the one hand, as against the risks associated with that occurring on the other.
In taking that approach, the Court is nonetheless required to consider all of the matters referred to in section 60CC including those set out in section 60CC(3). I have considered those matters. Before discussing the primary considerations, I will identify those considerations set out in section 60CC(3) that I regard as being of relevance to my determination of this matter.
Section 60CC(3) considerations
Issues Relating to the Children - Their Views, Level of Maturity, Culture and Relationships
Any views expressed by the child and the nature of the relationship of the child with each of the child’s parents and other persons
Section 60CC(3)(a) requires the Court to have regard to any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
In the Memorandum, the Family Consultant recorded her observations in respect to B and stated:
[B] spoke positively about spending time with her father and indicated that she would like it if she were to spend more time with him… [B] seems content to spend time with her father along with [C]. When briefly observed with each of her parents (along with [C]), [B] interacted confidently and happily with both.[3]
[3] Child Responsive Program Memorandum dated 1 August 2017 at [11].
The Family Consultant’s observations in respect to C were as follows:
When briefly observed with each of his parents (along with [B]), [C] interacted confidently and happily with them both. He resisted separating from his father, seemingly wanting to play with him for longer. He was distressed when separated from his mother but settled easily with his siblings.[4]
[4] Ibid at [12].
Notes made by the Department of Family and Community Services, in the course of an interview with the maternal grandmother on 31 January 2012, record the maternal grandmother saying that the children “enjoy time with dad. Try to do every Saturday”.[5]
[5] Exhibit F6.
I am satisfied that the two younger children enjoy spending time with their father.
The maturity, sex, lifestyle and background of the child and either of the child’s parents
Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
As noted, B is five years and nine months and C is 2 years and eleven months. In those circumstances the children’s views are of significance but not a major consideration.
The culture of the child if the child is Aboriginal or a Torres Strait Islander
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This consideration is not relevant in these proceedings.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
Decision making about long term issues, spending time and communication with the children
Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
Each of the parents make conflicting claims about the extent to which each of the other parent participated in making decisions about long-term issues concerning the children, spending time with and communicating with the children. It is not possible to resolve those competing contentions in these interim proceedings.
I am satisfied, however, that since their birth, the mother has been the primary carer of the children and they have spent the majority of their time with her. This includes in the period subsequent to the parties’ separation.
The parent’s obligations to maintain the child
Section 60CC(3)(ca) requires the Court to consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father stated that he had been assessed by the Child Support Agency as being required to pay $332 per month.[6] The father stated that he had made all required payments. The mother contends that this is not the case and that the father is in fact in arrears in respect to his child support obligations.
[6] Affidavit of the Father filed 1 March 2017 at [38].
The capacity of each of the child's parents
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
The mother contends that, as a result of mental health challenges and a propensity to lose his temper when he becomes frustrated, the father lacks parenting capacity.
As previously noted, there is some corroboration of the mother’s assertions in respect to the consequence of the father losing his temper. This is contained firstly in the records made by the Family Consultant of her interview with S. Further corroboration is contained in notes made by a representative of the Department of Family and Community Services who interviewed F on 1 March 2017. By way of notation, that entry records F as responding to a question as to whether home life had always been good with “dad not here. Up and down. Shouted a lot. Not nice”.
The notes produced by the Department of Family and Community Services then record the interviewer enquiring why it was “not nice” to which F is reported as saying “Mean to [E]. Hit her. Mum and dad didn’t get along. Now calm”.
The mother also expresses concern regarding the father’s capacity to properly care for the children in circumstances where there is uncertainty as to the persons who may be present in the father’s household. In that respect, reference was made to the clinical notes produced by Dr H dated 9 March 2017 which record:
Told me about the intricate and complicated web that he had got himself into since I last saw him regarding his relationships.
He explained that he stopped seeing [L] (current partner) in September 2016 as she allegedly was “ambivalent” about their relationship at the time.
He told me that he started to see [N], a nurse in her 40s whom he had met on the Internet who he described as “perfect”.
The relationship reportedly lasted for about four months (beginning of November 2016 to about two weeks ago (end of the 2017) approximately
He told me that this relationship did not end well.
He told me that at the time (somewhere within the last four months of seeing [N] – was seen both [N] and also [L] without each of the women knowing about the other)
However subsequently all three women – [L], [N] and apparently [Ms Peroni] found out about seeing [N] plus [L] etc (tangled messy web).[7]
[7] Exhibit F2.
Issues regarding parenting capacity will clearly be a major issue to be considered at the final hearing. For the purposes of these interim proceedings, it is sufficient to note that it is an issue to the extent to which it impacts upon issues of risk associated with the children spending time with the father.
Attitude and parental responsibility
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents.
The mother contends that the manner in which the father interacts with the children is inappropriate and that he has been irresponsible in engaging in conduct that constitutes family violence, including conduct which she alleges has occurred in the presence of the children.
The father alleges that the mother has inappropriately communicated with the children concerning matters relating to the parental dispute and these proceedings.
In the course of the proceedings the solicitor for the father contended that the father suspects the mother of either following him or having engaged the services of a private investigator to do so in respect to those occasions when the children spend time with the father.
There is insufficient evidence before the Court to enable the Court to make a determination in respect to these competing contentions.
Matters relating to allegations of family violence will be discussed immediately below.
Issues of family violence
Any family violence involving a child or a member of the child’s family
Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
Each party makes allegations against the other that they have engaged in conduct that constitutes family violence. As previously noted, it is not possible make findings of fact in these interim proceedings where those facts are in issue.
Nevertheless, in considering this issue, records made by the New South Wales Police Force regarding their interactions with this family are of relevance. A summary of those interactions is as follows.
Police notes created on 10 May 2004 record:
On Monday the 10th of May 2004 at about 20.30 p.m. the accused [the father] has walked into the lounge room where the victim [the mother] was sitting with his dinner and sat next to the victim who was sitting on the lounge the victim said to the accused that she did want the accused to sit so close to her and to go and sit on another chair in the lounge room. The accused has got up and walked away into the kitchen area and sat at the table. The victim and the accused exchange words which became heated …
The accused has then got out of the chair and walked into the lounge room where the victim was sitting where it is alleged that that the accused has punched the victim in the head. The accused denied this when interviewed by police. The accused and the victim began to struggle the accused has then kicked the victim in the left leg. The victim has then kicked the accused in the leg. The accused has then walked back into the kitchen area with the victim following close behind. The victim and the accused have continued to argue and yell at each other.
The accused has then sat down at the kitchen table. The victim approached the accused where they have continued to argue. The victim has then pushed the accused out of his chair onto the floor. The accused has then walked over to the kitchen sink and removed a large carving fork. This fork has two metal prongs which are approximately 10cm in length both of these prongs are sharpened to a point at each end. The accused has then raised the large carving fork above his right shoulder and walked towards the victims. The accused stopped approximately one meter away from the victim at this stage he did not say anything. The victim stated that she was scared did not know what the accused was going to do with the large carving fork. Also present at this time was a victim’s brother who was standing next to the victim and he stated that he was very afraid of the accused thinking he was going to hurt the victim and himself. After a few minutes the accused has turned around and placed the large carving fork into the kitchen sink.[8]
[8] Exhibit W2.
The police notes made on 11 May 2004 further record that:
The accused admitted to grabbing the carving fork and pointing it in the direction of the victim. The accused told police that he was about 1 and a half metres away from the victim when he had the carving fork in his hand. The accused stated that he believed that the victim and her brother would have been scared when he approached then with the carving fork.[9]
[9] Ibid.
Police notes made on 9 August 2006 record a complaint by the mother which, by way of summary was that, following discussions at a family barbecue on 6 August 2006, on 7 August 2006 the father called the mother and said “I’m gonna come and kill you’se all but I’m not gonna wave the knife around, I’m gonna mash you with my hands”.[10]
[10] Ibid.
The police notes made on 9 August 2006 record the police as having made contact with a person, who was not identified in the report, as acknowledging that “he had been treating the [father] for some number of years for depression and mental illness. He also advised police that the [father] had been exhibiting abrupt irrational and psychotic behaviour towards members of his family, regularly threatening physical harm”.[11]
[11] Ibid.
Police notes made on 25 September 2016 record an event that occurred on 25 September 2016 when the mother made a complaint to police that the father was sitting on the front porch of the former matrimonial home despite her request for him to leave. The police notes record making contact with the father:
who stated that he just went there to see the kids and he did nothing wrong. He went on to state that the [property] is still in his name and he can come and go whenever he feels like it. The police notes record “police gave the [father] some friendly advice about this issue and the possibility of AVO’s. The [father] took this on board and stated that he will not attend without pre-arranging first.[12]
[12] Ibid.
A summary of notes made by a representative of the Department of Family and Community Services regarding an interview with S that occurred on 7 October 2016 records the following:
[S] disclosed her father has assaulted her previously, including striking her with a belt and choking her; however not in the last three years. She also disclosed she has witnessed [E] being assaulted by the father on multiple occasions over a number of years.[13]
[13] Exhibit F6.
An assessment record made by a representative of the Department of Family and Community Services on 10 August 2010 relevantly records:
Caller reports that [E] has been diagnosed with a moderate developmental delay. Caller reports that she came (redacted) on 09/08/10 with red marks across her cheek. When the caller asked how she got the red marks [E] stated “daddy got angry this morning”. … Caller reports that the marks appeared to be horizontal across the upper left cheek and were about 3 inches in length and 1.5cm in width. Caller indicates that there were 3 to 4 marks which looked like finger marks.[14]
[14] Ibid.
An assessment record also made by a representative of the Department of Family and Community Services on 10 August 2010 records a conversation with the mother concerning reports that E had fingerprint marks on her face. The report records the account given by the mother in the following terms:
Mother stated that the incident occurred on Sunday. Mother stated that [E] was getting out of the car, bent down and her father closed the door which scratched her face. Mother was adamant that the marks were scratches and not finger marks. Mother stated that she explained this to the teachers. I informed the mother that her story is not consistent with the marks on [E’s] face. Mother was defensive and stated that this is not true and that she will even take photos. I told mother that this is not necessary.
I asked about history of domestic violence with her husband. Mother admitted to one incident which occurred five years ago when her husband put a knife to her throat. Mother stated that she called the police and took out an AVO. However, two weeks later she dropped the AVO because she did not feel “threatened” by him. Mother stated that, due to [E’s] Global Development Delay, she does not listen and that’s why her father accidentally closed the door in her face.
[The interviewer] explained to the mother that it is against the law to hit a child above the head, with an implement or leave a mark. Mother became defensive and raised her voice. Mother stated that I am “accusing her of hitting her child with an implement”. I challenged this and told the mother that I am simply explaining the law in Australia. I explained to the mother that the department will be monitoring [E] and further information may result in taking further action.[15]
[15] Ibid.
As noted, the father challenges any reporting of the occurrence of family violence by S on the basis that he asserts that she has admitted to lying. In that context the father refers the documents provided by the M Program which reports as a treatment goal “[S] identified that she would like to stop lying and feel better”.[16]
[16] Exhibit F5.
The notes from the M Program also record “presenting problems” in respect to S being “(1) lying, (2) stealing, numbness, identity?”.[17] The solicitor for the father also referred to the notes recording:
·Sister's ill-health (more lying and stealing occurs when her sister is ill).
·Attention and admiration for embellishing stories (way of forming and being close in relationships).
·Not getting into trouble getting in trouble for lying – getting away with it and also attention when in trouble.
·Little socialising outside of school – little access to healthy relationships outside of home.
[17] Ibid.
I do not accept that the comments made by S in the course of receiving therapy necessarily reflect upon the credibility of the information that she has given regarding the father engaging in acts of family violence. Moreover, there is a consistency between what S has reported and also what F and E have separately reported to representatives of the Department of Family and Community Services.
Whether any family violence order has or continues to apply
Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
The father was subject to an Apprehended Violence Order in May 2004 listing the mother and her brother as protected persons. The submissions set out in the mother’s case outline document note that “the AVO proceedings were discontinued due to evidence of the incident being insufficient”.
Effect of change
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Orders providing for the children to spend overnight time with the father would, in my view, constitute a significant change for the children. This is because the mother has been the children’s primary carer and the children have not, at this stage of their lives, spent other than a limited number of nights away from her.
This, together with other considerations to which I refer, is a matter that I have taken into account in deciding that it would be premature to make an order for the children to spend overnight time with the father.
Practical difficulty of implementation
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The May orders remove one practical difficulty of the children spending time with the father in that they remove the requirement for the children’s time with the father to be supervised.
The solicitor for the father indicated that the current amount of time that the children spend with the father is in itself insufficient. He also contends that it is insufficient in a practical sense, in that it restricts the range of activities that the children can engage in with the father.
This is a relevant consideration in extending the amount of time that the children spend with the father.
Avoiding further proceedings
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings and, accordingly, this consideration is not relevant.
Other relevant matters
Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
In terms of other relevant matters, the most significant issue relates to the father’s mental health. In that respect the mother tendered correspondence from the father’s previous employer dated 26 September 2008 indicating that the father had difficulties in respect to relationships with others and that the company required him “to complete additional training on harassment” to ensure that he understood the company’s obligations.[18]
[18] Exhibit W2.
The father, on the other hand, tendered correspondence from a previous employer dated 1 July 2011 congratulating him on his achievement of three years employment with that company.
I do not regard the employment records that have been tendered as being indicative of any mental health issues concerning the father.
Clinical notes produced by Dr H, that were referred to by the father, include notes made on 9 March 2017, which record Dr H as stating that the mother’s reports of Family Violence:
has come to me as a huge shock as throughout the years of seeing [the father] (back in 2010 and 2011 and more recently 2016 and this year I have not known him to be a violent person. He has not presented as someone experiencing issues with anger management or violence or aggression tendencies et cetera
Certainly when [Ms Peroni] initiated therapy on [Mr Runting’s] behalf in 2010/2011 if I recall correctly, it was for his “mental health” namely anxiety et cetera.
The solicitor for the mother also referred to clinical notes provided by the T General Practice which indicated the father is continuing to receive treatment in respect to anxiety. The notes refer to attendances upon medical practitioners at that practice for “depression/anxiety”. Reference was made, for instance, to a notation made by Dr J on 10 August 2016 recording the doctor’s impression of “moderate anxiety/depression likely precipitated by marriage break up”.[19]
[19] Exhibit F1.
It was submitted that the father’s references to feelings of anxiety and depression following the breakup of his relationship could reasonably be expected. It was further submitted that the father is obtaining appropriate treatment in respect to that condition including acting upon advice regarding appropriate medication.
Counsel for the mother similarly referred to clinical notes produced by Dr H as indicating the father having a history of mental health challenges including anxiety for which the father required medication.
Of concern, in respect to the father’s mental health and the potential impact that it may have on the children, are entries in the clinical notes made by Dr H made on 25 November 2010 which record:
·suicidal ideation six months ago – “taking pills” – overdose.
·two – three years ago – Near attempt – overdose pills.[20]
[20] Exhibit F2.
The mother also referred to a record made by Dr J on 10 August 2016 noting that the father “has thoughts about the possibility of self harm but no plans to do anything, says he would not do anything”.[21]
Primary considerations
[21] Exhibit F1.
Meaningful relationship
In this matter, both parties acknowledged that it is in the children’s best interests to have a meaningful relationship with both parents in terms of s 60CC(2)(a). I accept that to be the case. In Sigley v Evor (2011) 44 Fam LR 439, the Full Court confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.[22]
[22] Citing Mazorski & Albright (2007) 37 Fam LR 518 at [26].
In McCall & Clark[23] the Full Court accepted that an appropriate interpretation of the concept of “meaningful relationship” was provided by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at paragraph 26, where His Honour said:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
[23] (2009) 41 Fam LR 483 at [115].
As noted, both parents acknowledged that it is appropriate that the children have a meaningful relationship with both parents. The father contends that this is best achieved by the children’s time with him being progressively increased as noted above.
The mother contends however, that the desirable object of the children having a meaningful relationship with the father needs to be balanced against the considerations of risk to which I have earlier referred.
Unacceptable risk
Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B,[24] the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
[24] (1993) FLC 92-357 at 79,778.
In M v M (1988) 166 CLR 69 at paragraph 78 the High Court said:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially, Hon. John Fogarty AM, a former Judge of this Court said:
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[25]
[25] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[26]
[26] Stott & Holger and Anor [2017] FamCAFC 152 referring to (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk can be ameliorated by safeguards.[27]
[27] Bennett and Bennett (1991) FLC 92-191 at 78,267.
In the article by the Hon. John Fogarty to which I have referred, his Honour wrote:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’…
In interim proceedings, it is difficult to identify unacceptable risk and determine whether reasonable safeguards can mitigate against that risk. In Cowling v Cowling [1998] FamCA 19 at paragraph 18 the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect as in SS v AH,[28] the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[28] [2010] FamCAFC 13 at [100], see also Keats & Keats [2016] FamCAFC 156 at [9] and Salah & Salah (2016) FLC 93‑713 at 81,516 – 81,517 [39] – [40].
It is to be observed that the reference by the Full Court in SS v AH,[29] to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[30] as long as there is a proper basis for those “possibilities”.
[29] Ibid.
[30] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
Consideration of risk
As I have previously indicated, the central issue in these interim proceedings is the issue of the children being exposed to an unacceptable risk of physical and/or psychological harm in spending time with the father. For reasons that I will outline, I am satisfied that risk is such that the amount of time that the children spend with the father should, at this stage of the proceedings, be constrained.
I have earlier referred to extracts from notes provided by the New South Wales Police Force that raise a significant concern regarding the extent to which the father has engaged in acts of family violence. Even on the father’s account of the incident which occurred in May 2004, it is clear that the incident involved threatening behaviour on the part of the father and constituted an act of family violence.
I am satisfied that there is a real possibility that additional acts of family violence have occurred including physical acts of violence against the three eldest children.
There is, however, no evidence that the father has engaged in acts of physical violence against the two youngest children who are the subject of these proceedings.
In assessing whether there is a risk of physical violence in the future and, specifically, whether the children are at an unacceptable risk of physical harm in the father’s presence, it is of significance that the mother’s allegations of the history of family violence are, to an extent, corroborated by accounts of the three eldest children.
Also of relevance in determining whether there is an unacceptable risk of the children suffering physical harm in the care of the father, is evidence of the father having a history of anxiety for which he has required therapy and medication. More recently, it appears that the father suffers from both depression and anxiety for which he requires medication.
Of greatest concern are two incidents where the father attempted suicide, one of which is recorded as a “near” incident. As against the identification of those two past incidents is a recording of the father stating that he would not now engage in such an act. Clearly, the children would be at risk of both physical and psychological harm if the father attempted self-harm when they were in his care.
The difficulty in this case, at least at this stage of the proceedings, is the absence of adequate information regarding the father’s mental health.
In the absence of adequate information concerning that matter, it is necessary for the Court to take a cautious approach. It is to the credit of all legal representatives that they recognised that such an approach is appropriate.
In terms of the potential risk of psychological harm, I note that the mother asserts that the father has a low frustration threshold and tends to become aggressive and even violent if that threshold is crossed. Irrespective of whether or not the father suffers poor mental health, there are indications that the mother’s assessment of the father’s propensity to become aggressive, when frustrated, may be accurate.
In all the circumstances, therefore, I am satisfied that while it is appropriate for there to be an increase in the amount of time that the children spend with the father, it should not be increased to overnight time.
I am of the view that the orders proposed by the ICL provide for an appropriate arrangement. Effectively, the proposal by the ICL reflects the amount of time sought by the father up until the third stage of his proposed orders which would occur with overnight time commencing in December 2017.
I also favour the orders proposed by the ICL insofar as they provide for the children to have more regular time with the father. That is, the orders provide for the children to spend time with the father weekly rather than fortnightly. The orders will, however, facilitate the parents agreeing to a variation of those arrangements if they would prefer a fortnightly rather than weekly arrangement.
At this stage of the proceedings there is a lack of clarity regarding the nature of the father’s relationship with a new partner who the father has indicated he would like to introduce to the children. That uncertainty is reflected in the clinical notes produced by Dr H to which I have earlier referred. In the context of that uncertainty, the mother and the ICL have justifiably, in my view, expressed concern regarding the children spending time with the father when an unknown third person may be present.
Accordingly, on that basis, I do not propose to vary by deletion order 7 of the consent orders made on 22 May 2017.
I also propose to make an order requiring each party to provide the other with the details of their address and telephone number within 24 hours of any change to those details. The mother indicated to the Court that there has been some difficulty in obtaining those details from the father since the May orders were made. The ICL supported such an order being made on an interim basis as the May orders do not provide for the ongoing provision of those details. The Court finds it appropriate for both parties to be obliged to communicate current living and contact details to each other. The orders will therefore provide for both parties to inform the other of any change to their addresses and telephone numbers.
For all these reasons I make the orders as set out at the commencement of my reasons for judgment.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McCelland delivered on 22 September 2017.
Associate:
Date: 22 September 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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