Reamy and Haycox

Case [2014] FCCA 2993

FEDERAL CIRCUIT COURT OF AUSTRALIA

REAMY & HAYCOX [2014] FCCA 2993
Catchwords:
FAMILY LAW – Children – relocation – allegations of family violence.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA
Jurchenko & Foster [2014] FamCAFC 127
Mallahan & Mallahan [2010] FamCA 631
MRR v GR [2010] HCA 4
U v U (2002) 211 CLR 238
Applicant: MR REAMY
Respondent: MS HAYCOX
File Number: BRC 1476 of 2013
Judgment of: Judge Howard
Hearing dates: 17, 18 November 2014 and 17 December 2014
Date of Last Submission: 17 December 2014
Delivered at: Brisbane
Delivered on: 23 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Middleton
Solicitors for the Applicant: Couper Geysen Family & Animal Law
Counsel for the Respondent: Mr Shoebridge
Solicitors for the Respondent: Tubaro Lawyers
Counsel for the Independent Children's Lawyer: Mr Tolton
Solicitors for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

  1. That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on Friday 16 January 2015.

  2. That the Independent Children’s Lawyer and the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on Friday 23 January 2015.

  3. That in the event the Independent Children’s Lawyer and the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1476 of 2013

MR REAMY

Applicant

And

MS HAYCOX

Respondent

REASONS FOR JUDGMENT

Background

  1. The applicant father was born on [omitted] 1967.  The respondent mother was born on [omitted] 1972.  The parties began living together in about June 1991.

  2. There was a period of separation during 2012 and the parties separated on a final basis on 17 November 2012.

  3. The relationship had therefore lasted approximately 21 years.

  4. The parties settled their property proceedings and orders were made on 16 July 2013.

  5. The parties have three children, namely:

    a)[X] born [omitted] 1998;

    b)[Y] born [omitted] 2002; and

    c)[Z] born [omitted] 2005.

  6. All three children live with the mother.  [X] and [Y] refuse to spend any time with the father.  The father does not seek a parenting order requiring either [X] or [Y] spend time with him.

  7. This parenting dispute revolves mainly around the child [Z].  During school term [Z] currently spends alternate weekends with the father from 5:00pm Friday until 4:00pm Sunday, and each Wednesday from 4:30pm until 7:30pm.

  8. The father…

Continue reading Reamy and Haycox

Sign in free to access the full text

Details
AGLC
Reamy and Haycox [2014] FCCA 2993
Case
[2014] FCCA 2993
Decision Date

CaseChat Overview and Summary

This matter concerned an application before Judge Howard regarding the parenting arrangements for the children, [X], [Y], and [Z]. The dispute involved extensive allegations of family violence made by the mother against the father, which the father denied. The court was required to consider these allegations within the framework of the primary considerations for determining a child's best interests under section 60CC of the relevant legislation.

The court was tasked with determining the weight to be given to the allegations of family violence, as section 60CC(2A) mandates greater weight be given to the need to protect a child from physical or psychological harm. This involved assessing the mother's detailed accounts of alleged physical and verbal abuse by the father, as well as the potential for emotional and psychological harm to the child [Z] arising from the negativity expressed by the older siblings and the mother towards the father. The court also had to consider the findings and recommendations of the Independent Children's Lawyer and the Family Report, which noted inconsistencies in the child [Z]'s presentation and expressed concerns about the older siblings' entrenched views regarding their father.

In its reasoning, the court acknowledged the mother's extensive allegations of family violence, including specific incidents of physical assault, verbal abuse, and threats. However, the court also noted the Family Report's observations that the child [Z] appeared comfortable with his father, stepmother, and stepsister, and that there were no observed concerns warranting supervised or no time with them. The court found that the older siblings, [X] and [Y], remained unwilling to engage with their father, and that [Z] appeared to be torn between his parents and unwilling to upset his mother and sisters. Despite the mother's safety concerns, the court found no evidence of intervention by welfare or police authorities to support claims of harm to [Z] in his father's care. The court ultimately ordered that the Independent Children's Lawyer provide a proposed Final Order to the parties, with a deadline for them to attempt to reach an agreed position. If agreement could not be reached, the matter would be listed for a mention.

Orders

Orders of the court

1.

That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on Friday 16 January 2015.

2.

That the Independent Children’s Lawyer and the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on Friday 23 January 2015.

3.

That in the event the Independent Children’s Lawyer and the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ms L stated from paragraph 7.1 – by way of recommendation:-“CONCLUSIONS AND RECOMMENDATIONS7.1 The aforementioned subject children, [X], [Y] and [Z] were presented to the interviews in a well cared for manner. They appeared to be a closely bonded sibship and they were secure in the care of their mother.7.2 It is noted that this Updated Family Report should be read in conjunction with the previous Family Report prepared in this matter by this report writer as that report contains a comprehensive history of the background and issues which are still relevant in this matter.7.3 It is also noted that the report prepared by Psychologist/Social Worker, Ms B, outlines a number of issues and concerns which are consistent with issues raised in the previous Family Report.7.4 In particular, it is noted that there has been little or no progress made in this matter since the report prepared by this writer.7.5 In this regard, specifically the relationships between [X] and [Y] and their father have not progressed at all. [X] and [Y] continue to be staunchly of the view that they will not have anything to do with their father and intervention by Ms B has not been able to assist this.7.6 [Z] continues to express concerns in relation to his relationship and communication and time with his father consistent with that outlined in the previous Family Report, despite the involvement of Ms B.7.7 In this regard, it is noted that there is an inconsistency in [Z]’s presentation when observed with his father by both Ms B and this report writer and his reports in relation to communication and time with his father. In this regard, it is noted that [Z] warms to his father and enjoys time with him and he has also been observed in the context of this Family Report with his step mother and step sister who now reside with the father.7.8 To this extent, [Z] has presented as comfortable in the care of his father, step mother and his step sibling; and there were no concerns observed as a result of the process of the Family Report that would warrant him having supervised time or no time with them.7.9 [Z] has presented his views with regard to not wanting a relationship or communication and time with his father in a consistent manner though he has been unable to explain any specific reasons for wanting no communication or time with his father and/or his family.7.10 Similarly, when [Y] was interviewed she was unable to specify any particular reasons, especially since the previous Family Report, that would account for her not making any progress with regard to any communication or time with her father. Similarly, [X] simply reiterated the concerns expressed previously.7.11 It is noted that the mother has consistently stated that she simply wants the best interests for the subject children and she will support whatever views they have. She was observed during the process of the Family Report to encourage the subject children, particularly [Z], to express his views and to talk openly about enjoyment with his father and family if this was the case.7.12 It was of significant concern that [Z] simply shut down on return to his mother and sisters after time with his father and family particularly in relation to this time being positive. [Z] was unable to acknowledge any positivity with regard to his father and family and refuted opportunities for positivity to be relayed to his mother and sisters, such as by way of a photo taken by the report writer during the observation which showed [Z] smiling and laughing when playing with his father.7.13 The indications are that [Z]’s primary difficulty at this juncture is being torn between the parties and being unable to transfer any information regarding either environment to the other.7.14 It is highly likely that if [Z] is feeling as torn as he is because his sisters will not have anything to do with their father and he does not want to upset his sisters and/or his mother.7.15 Whilst the mother has raised concerns as to the safety, both physically and emotionally in his father’s care, there has been no intervention by welfare or police authorities or any specific child protection concerns that would justify any claims that [Z] has been harmed or is likely to be harmed in his father’s care.7.16 The indications at this time are that [Z] should have increased time with his father, not decreased. In this regard it is suggested that he spend alternate weekends with his father until Monday before school.7.17 With regard to the schooling issue, it is noted that all three children had been home schooled.7.18 [X] has essentially completed her schooling and is reportedly progressing well. She presented in a confident manner. She is now undertaking TAFE studies so this is no longer a concern with regard to her.7.19 It is suggested that as [X] is almost 16 years old that she not be the subject of future Court proceedings and/or Court Orders and that her wishes in relation to her father be respected.7.20 [Y] is completing the year 7 curriculum and [Z] the year 3 curriculum under the supervision of their mother and is reportedly progressing well.7.21 [Y] reportedly has special needs in particular, Asperger’s’ Spectrum Disorder, though she is not engaged with any formal interventions or professionals in this regard, other than the treating paediatrician.7.22 She is also so compromised emotionally and lacking in confidence it seems that she would need to be independently assessed by a Psychologist, such [Mr B], who is specialised in schooling to determine how her schooling needs should be best met.7.23 It is noted that [Y] is unlikely to move in relation to changing her views regarding her father and pushing this matter further at this point is a waste and stressful. Her being subject to Court Orders now regarding communication and/or time with her father seems not useful.7.24 The father’s concerns with regard to [Z] being in formal school are noted and he has indicated that [Z] has said to him that he would enjoy being in school. Certainly his step sister is and if they were to attend school together this would likely be comfortably facilitated from the point of view that [Z] would have his step sibling at the same school.7.25 The indications are that there would be benefits for [Z] in attending a formal school such as [S] School where he attended previously. Certainly these would be possibly from an educational point of view, given that his mother is not a trained teacher; that there are no formal authorities involved in his education; and that he would have social and peer interactions and so forth.7.26 [Z] has no special needs. He currently attends [sport omitted] training in a club situation and he is apparently coping with this. He is a much more outgoing child it seems, certainly when in his father care than when observed when in his mother care and with his sisters.7.27 It is strongly suggested, therefore, that he be assessed by someone such as Psychologist, [Mr B] who specialises in schooling matters; and that consideration be given to him attending formal mainstream schooling.7.28 It is also suggested that both parents facilitate the schooling when [Z] is in their care and that if/when he commences formal school that handovers occur in this context.7.29 It is also strongly suggested that special days be shared such that the father has [Z] from Friday after school until Monday before school on Father’s Day weekends and that he also has him from 5.00pm Christmas Day until 5.00pm on Boxing Day each year for Christmas celebrations.7.30 It is also suggested that [Z]’s birthday be shared equally by the parents and that the time frames for this be specifically stated in Court Orders so that negotiation between the parents does not have to occur.7.31 It is suggested that school holidays for [Z] be equally shared between the parents from now; with handover times specifically stated from 10.00am on the day after school finishes until 10.00 am on the middle Saturday of the school holidays.7.32 It is also suggested though that the mother have the opportunity, to travel with the children overseas from end 2014 on an occasion for up to 6 consecutive weeks; and that the father sign passport applications in this regard as soon as possible.7.34 It is also suggested that any other travel undertaken by either of the parents, particularly the mother, overseas with [Z] occur during her holiday time with the children.7.35 It is suggested that the father have authorities to liaise with and obtain information in relation to the subject children from professionals involved with him and that he participates in appointments separately from the mother as he so desires and makes these arrangements for himself.7.36 Given the above suggestions, it is suggested that the mother not be able to relocate to Melbourne with the subject children.”

Ratio Decidendi

Legal Principle Established

Section 60CC sets how a Court is to determine what is in a child’s best interests. The primary considerations are stated in s.60CC(2) and s.60CC(2A). Those subsections state:-“Primary considerations60CC(2) The primary 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.60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” In this particular case there are extensive allegations made by the mother of family violence perpetrated by the father during the course of the relationship. According to the mother, this family violence was directed at her personally and also, on occasions, by the father towards the children. The father has denied the allegations of family violence. At the outset and within a consideration of s.60CC(2)(b) – it is necessary for the Court to consider the allegations of family violence made by the mother and to make findings concerning those allegations. In addition, and within a consideration of s.60CC(2)(b) the Court must consider the need to protect the child [Z] from harm – including emotional and/or psychological harm – from being subjected to or exposed to the negativity towards the father which (I find) is expressed or supported by the two older siblings ([X] and [Y]) and the mother. I will refer in more detail to relevant findings in this regard later in these Reasons for Judgment. The mother has alleged that over a long period of time the father was responsible for family violence against both her and the children. In the mother’s affidavit filed 29 October 2014 (the mother’s trial affidavit) the mother has detailed a significant history containing allegations of family violence. The allegations made by the mother are as follows:-“32. In 1992/93 on or about Christmas, the father was in the car with me driving. He was very drunk and he slumped himself on me whilst laughing. I pushed him off me so that we would not have a car accident. He then did the same thing. Again I pushed him off me, this time with more force. He then punched me in the eye. I swung back at him as the car was still moving. He then punched me in the face and made me stop the car, which I did. He then threatened to throw me out of the car and leave me there. I begged for him not to do that and managed to convince him. When we arrived home I ran from the car and hid behind a neighbour’s fence for about an hour until I guessed the father must have fallen asleep. The next day I noticed that I had a black eye.33. The father’s physical violence continued through the rest of the relationship up until the children were born. He would regularly hit me, push me and throw me.34. I have seen the father punch each and every one of the eight glass framed pictures on the wall in the lounge in 1996. In that same year he also punched me many times. Once, whilst at home, he punched me in the side of the head. He has even committed such violence which could have easily resulted in my death by pushing me down a flight of stairs causing me to fall and land on my right hip area. Although the flight was three steps, there were no railings. He also, that year, swung and hit me in the side of the head with the Yellow Pages.35. The father also regularly abused me verbally. He often called me a ‘fat bitch’, ‘stupid fat bitch’, ugly fat bitch, fucking stupid bitch, “fucking bitch” and “I fucking hate you, you fucking ugly bitch”.36. Often, but less regularly, he would call me, “Slut”, and “Cunt”.37. The vulgar name calling of me by the father continued after the children were born and throughout the rest of the relationship. The children were subjected to hearing most of this. On one occasion, more recently, on 7 November 2012, just before the father finally left the former matrimonial home, the father came home in his truck late at night and was making too much noise to cause the waking of the children. I told him this. His response was to yell at me, “Fuck off and go back to bed”.38. The father had no hesitation to physically assault me in front of the children. The children seeing their father do this to their mother must and will likely have a long lasting emotional and psychological affect on the children. I am concerned how this might affect their future relationships with other people when they are adults.39. Examples of other events include the following:(a) In 1998, the father kicked me in the upper thigh because he disagreed with me about something. He resorts to violence very easily. He did this whilst I was carrying [X] on my left hip. (b) In 2000 he threw me against a bedroom door handle hurting my spine.(c) In 2003 he threw a knife at me. He had been sitting down for dinner. We were discussing something. He got angry at me and then stood up and threw the knife. The knife narrowly missed me because I had ducked just in time.(d) He threw a fork at me with such force that it missed me and hit the ceiling causing the ceiling to be chipped.(e) In 2003 the father and the two children and I were driving the car sightseeing. Along the way there were two female hitchhikers. He said he wanted to stop and pick them up. I did not agree. He then stopped the car and forced me out of the car, leaving me alone on the side of the road without my purse or phone. He drove off without me with the children in the car. This would, I believe, have been a very traumatic experience for a 5 year old and a 1 year old to witness happen to their mother. About 10 minutes later the father returned in the car and told me to get in. The children were crying hysterically, so I sat in the back seat with them. I have no doubt that this incident would have never been forgotten by [X].(f) In 2008, the father and I with the children were driving the campervan home from a family holiday in Victoria. The children needed to stretch their legs and have something to eat and we needed a place to park the van for the evening. I suggested to the father to take the turn off to Newcastle. We could not find an overnight parking place and drove around looking for one. The father became increasingly frustrated by this. He began yelling at me. He said, “Alright, where now, this was your fucking idea”. The children and I were afraid and remained silent. When we ended up in a dead end street, he stopped the care and got out and walked to the passenger side of the van and yelled and swore at me for 45 minutes. The children and I were terrified.(g) In 2009 the father rode his quad bike in such a dangerous and intentionally reckless manner. He drove the bike at me and the child [Y] at a very fast speed whilst we were standing nearby. This was near the driveway area near the carport. [Y] and I were sprayed with decomposed granite as he swerved just a few meters from us. Both [Y] and I were frightened by this action.(h) On 26 February 2012, in front of the children [X] and [Z], the father said to me, “I wish you were dead”.(i) Over the years, the father had said things to me such as “I wish you were dead”, “I want you dead”, “Just die”, and “I should just fucking kill you”.(j) On 21 March 2012, the father picked up a book that [Z] was doing his homework on, and slammed it down on the table because the father felt that [Z] was taking too much time to do his homework. He also yelled at [Z] about it. [X] asked her father why he had done that to [Z]. The father then, in response, swore at his daughter.(k) In early 2012, the father punched the kitchen wall and then pushed me very hard against the kitchen bench, and ‘mock’ head butted me.40. The father’s anger and violence includes violence toward other people. The father is easily tipped off into anger without control. I recall in 1995, during a camping trip to [omitted] Island when the father punched an elderly man in the face. The man was easily in his late 60’s and may have even been in his 70’s. The father’s violence to this elderly man was triggered by a very minor incident. This elderly man had driven past us causing water to be splashed onto the father’s Ute. The father had pursued this man, punched him in the face and then took the man’s keys from his car and threw them into the ocean. After the incident, the father showed no remorse nor demonstrated to me that he had gone over board. It was clear that he considered what he had done as being legitimate. However, he was later charged by the Police. He told me that he was sentenced with a good behaviour bond. I have noted from the Family Report that Ms B reported the father has a criminal history yet failed to mention this serious violent crime. I also note him being reported by Ms L as saying that he had previously been convicted for crimes of dishonesty, even at the age of 25 years. The father never revealed these things to me.41. Although we had been separated under the same roof since 30 April 2012, the father had moved out for almost three weeks in June. Whilst the father has been away, with the understanding that he was not returning, the children had managed to try having their two dogs stay inside the house at night. They loved these dogs dearly and enjoyed their company at night. The dogs were well behaved and house trained. When the father returned three weeks later, beside this causing the children some confusion, it also caused the children more distress by the way the father acted upon seeing the dogs in the house. The father, upon seeing the dogs, became angry and yelled at me to remove the dogs. I explained the situation and that the children loved the dogs inside. The father would have nothing of it and commenced swearing at me and calling me “a fucking bitch”. He was yelling constantly to get the dogs out. The children were crying by this time and the dogs were frightened. The father actually picked up one of the dogs and threw it out the back door. He did this cruel act against the harmless animal in front of the children.42. The father has been cruel to the animals in the past. I have seen the father kick all of the dogs. On one occasion I saw the father, whilst wearing steel capped boots, kick a Golden Retriever (named [omitted]) in the hip. The dog yelped in pain.43. On 20 July 2012, the father threatened the children that he would sell the dogs and kill the other pets including the cats and chickens because they cost too much to feed. The father seemed to get pleasure out of the reaction he had caused to the children. I say this because even though the children were clearly upset, he continued saying that he was going to sell and kill animals.44. Our son [Z], at just the age of 6 years in early 2012, witnessed his father spit on my face whilst I was holding [Z]’s hand.”