Richmond and Kerry

[2016] FCCA 1293

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICHMOND & KERRY [2016] FCCA 1293

Catchwords:
FAMILY LAW – Parenting – interim application – six children – allegations of serious family violence and neglect – risk of harm – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode[2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Mazorski & Albright (2007) 37 FamLR 518

Applicant: MS RICHMOND

Respondent: MR KERRY

File Number: NCC 2969 of 2015

Judgment of: Judge Middleton

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Newcastle

Delivered on: 25 May 2016

REPRESENTATION

Solicitor for the Applicant: Mr Wotton

Solicitors for the Applicant: Nash Allen Williams & Wotton

Solicitor for the Respondent:

Solicitors for the Respondent:

Solicitor for the Independent Children’s Lawyer:

Mr Hannigan

Aubrey Brown Partners

Mr Fawcett

Solicitors for the Independent Children’s Lawyer: Catalyst Family Lawyers

ORDERS

1. Pursuant to s.91B of the Family Law Act1975, the Department of Family and Community Service NSW is requested to intervene in these proceedings and with respect to same:

   (a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been granted to the parties, their legal representatives and/or the Independent Children’s Lawyer;

   (b)The Department is requested to advise, in writing and within 14 days of receipt of Reasons, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:

   (i)Formally granting such leave and joining the Department as a party;

   (ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;

   (iii)Relisting the proceedings on short notice to allow further case management directions to be made.

1. That the children, V born (omitted) 2001, W born (omitted) 2004, X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2012 (“the children”) live with the mother at (omitted).

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The children have no time with the father.

5. The mother shall immediately engage with the organisation Brighter Futures and follow all directions and recommendations made by them.

6. The Independent Children’s Lawyer is to serve a copy of Reasons for Judgment upon the Department. 

7. The matter is adjourned to 16 June 2016 at 9:30am for further directions.

THE COURT NOTES THAT:

A.In the event that the Department intervenes, the Court will make the following orders on the next occasion:

a.That the Minister have sole parental responsibility for the children.

b.That the Minister shall determine where the children live.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2969 of 2015

MS RICHMOND

Applicant

And

MR KERRY

Respondent

REASONS FOR JUDGMENT

Edited from the transcript

1. U, born (omitted) 1998, V, born (omitted) 2001, W, born (omitted) 2004, X, born (omitted) 2008, Y, born (omitted) 2010 and Z, born (omitted) 2012 were born to the applicant mother, who is 36, and the respondent father, who is 45.  The parents lived together from either 1996 or 1997.  The parents cannot agree on that point.  The parents separated in either August 2011 or September 2011.  They can not agree on that point either.

2. This is an interim application.  In Goode & Goode[1], the Full Court at paragraph 82 set out how a court should properly and determine interim hearings.  I will follow that pathway.  Subsequent to that decision, the Full Court in Marvel & Marvel[2] said this:

   “As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children”.

   [1] Goode & Goode[2006] FamCA 1346, 82

   [2] Marvel & Marvel [2010] FamCAFC 101

3. In SS & AH[3] again the Full Court emphasised the care necessary to be exercised in making findings in interim parenting proceedings.  At paragraph 123, the full bench in Marvel & Marvel[4] referred to SS & AH[5] when they said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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”.

   [3] SS & AH [2010] FamCAFC 13

   [4] Marvel & Marvel [2010] FamCAFC 101

   [5] SS & AH[2010] FamCAFC 13

4. Those cases emphasise the care needed when making interim hearing decisions and support the notion that courts should be cautious and take a conservative approach.  In those circumstances, and having regard to what the authorities say in relation to the Court being able to rely upon uncontroversial or agreed facts, greater weight must be given to the independent evidence that supports those agreed facts.

5. A short history is useful when considering the factual matrix as it appeared at the time of the hearing.  Both parties acknowledge that there has been significant and extensive domestic violence throughout the relationship beginning in or about 1996 and more will be said about that.  The oldest child, U, lives with neither parent, preferring to live with her boyfriend and his parent or parents.  V, aged 15, lives with the father.  It is conceded that he is away from the home for 12 hours a day, leaving the child, in the main, unsupervised.  The mother concedes that she cannot control V and accordingly seeks no orders for her care. The four youngest children, the boys, live with the mother and have not spent any time with their father since December 2014. 

6. Turning to the evidence, the mother alleges extreme family violence at the hands of the father since the beginning of the relationship.  She says the father punched her, choked her, slapped her, pushed her, used offensive language at her, threatened to kill her, her mother and the children.  She alleges that V is left unsupervised, is still subjected to domestic violence at the hands of the father, including him kicking in a bedroom door where she was hiding, neglects her and does not provide her with adequate food or enforce the need for her to attend school.

7. The father alleges that the mother was the perpetrator of domestic violence against him and U.  Indeed, it is conceded and is a fact that there was an apprehended violence order in place protecting U from her mother.  The father, at paragraph 19 of his affidavit filed on 4 February 2016, says:

   “The only time during the history of the relationship between me and the mother that I used any physical force in relation to the mother was in circumstances of what I regarded as reasonable attempts to prevent further assaults upon me, by holding her and turning her away or other restraining method”.

8. That paragraph is not consistent with the father’s subsequent concession that he did, in fact, break the mother’s nose, but did so in self-defence.  The father says that he has learned a lot from counselling he has undertaken and now concedes that, to quote:

   “I was wrong in being involved in loud arguments and disputes.  I say that any engagement by me in such behaviour was always as a result of her”

9. And I assume he is referring to the mother:

   “commencing the scene on any particular occasion”.

10. With the greatest of respect to the father, that statement not only is inconsistent with his subsequent concessions, but only serves to emphasise the complete lack of insight he has into his own behaviour and the effects that he has on the children.  The father attempts to blame the mother for all the aggression and violence and even forms the view that the mother may have developed serious mental health issues as a result of her, and I quote again:

    “…very early heroin addiction and addiction and abuse of alcohol”.

11. Notwithstanding the allegations that each of the parents makes against the other dating back to the beginning of their relationship, their evidence only serves to prove, on any view, that neither parent has the capacity to protect the children and neither parent has any insight into their own behaviours and the impact that has on the children.

12. The paternal grandmother, in her affidavit filed on 10 May 2016, confirms that she witnessed family violence between the parents and in the presence of the children.  On any view of her evidence, it is apparent that she either sat idly by whilst this family violence occurred or she could not or would intervene to protect the children.  She puts herself forward as a supervisor in those circumstances and some doubt must be raised about her capacity to protect the children from their father and mother in those circumstances. Again, the Court should take a cautious approach.

13. The allegations that are raised are family violence, anger management issues, neglect and abuse. 

Independent evidence

1. Dr S provided a Child Inclusive memorandum to the Court dated 5 February 2016.  That memorandum reveals each party denies primary responsibility for violence and blames the other. The father admitted to breaking the mother’s nose.  The father was found guilty of an assault on the mother that occurred in December of 2004.  A number of the children reported being frequently smacked by the mother and father.  At least two of the children reported that the father has hit them with items other than his hands.  The father admitted to yelling and screaming at the children in their faces.  The father admitted that he used to pull the children by the hair and twist their hair.

2. Some of the children referred to multiple holes in the house due to frequent and ongoing violence in the home.  The majority of the children informed the family consultant that the father yelled at them and called them awful names and swore at them.  The mother says she is now involved with Brighter Futures as a result of the department’s intervention.  Both parties used marijuana. Both parties abused alcohol, the father telling the consultant that it was the mother’s fault and that he always drank less than her.  There is no communication between the parents.  There is high risk and high conflict. 

3. V spends a lot of time unsupervised due to the father’s work hours, spends minimal time with the father, would like to return to the mother.  The consultant says significant concern is raised for V. 

The subpoena evidence

1. Exhibit 1 in these proceedings was the criminal history of the father.  The history dates back to 1988 when the father was a juvenile.  In 1989, the father was convicted of an offence of assault occasion actual bodily harm and an assault occasion grievous bodily harm. 

2. In 1991, he was convicted of assault.  In October 2011, he was convicted of stalk, intimidate with intent to cause fear or physical, mental harm, also common assault.  He was convicted of failing to appear on those charges on 2 November 2011.  In December of 2014, he was convicted of common assault.  In January of 2015, he was convicted and sentenced to imprisonment for contravening an apprehended violence order and common assault.  On appeal, that imprisonment was suspended wholly on entering into a bond with conditions.

3. The mother’s criminal history discloses three offences dating back to when the mother was a child, the most serious offence being robbery whilst armed and in company.  The other two offences – break enter and steal and stealing – are also offences of dishonesty. 

4. The department records revealed a household that is chaotic, violent and most inappropriate to raise children in.  The children all fight with each other.  The boys punch each other.  The mother and the oldest children regularly engaged in violent confrontation, with the police called on at least two occasions.

5. Post-separation, the oldest child reported two alleged assaults perpetrated by her, by the mother.  One report was, in the view of the police, made in retaliation to the father being charged with assault against the mother. 

6. The school reports for the children all reveal many unjustified absences from school.  The subpoena notice discloses that the mother has been offered support and counselling by the school.  Despite this, the mother can not manage to ensure that the children attend school

7. V has been in the father’s care since approximately February 2015.  Although she predominantly lives with the father, she is left unsupervised a considerable amount of the time and has stayed at various friends’ homes during this time. 

8. The school records for V disclose serious issues of neglect.  She often attends school without any food. She is often absent.  Her behaviour at school, where she attends, is often very disruptive.  She often presents as crying, upset or angry.  V is described by the school as a child at risk.  The school believes she is so on the edge that she is unable to perform other than on a most basic level owing to her severe mental health issues.

9. V has reported to school that she wants to go to foster care.  In May 2015, she told the school that her father swears at her all the time and says things like “shut up, bitch”, that he has punched her in the back and the arm, locked her out of the house.  In October of 2015, V disclosed that both her parents had been verbally and physically aggressive to each other in her presence.  She disclosed that her father frequently drinks alcohol. 

10. V was recently hospitalised due to a failed attempt to take her own life.  The father knew nothing of the details, indicating through his solicitor that he rang the school and was told they could not tell him anything.  That response reveals the absolute disregard he has to his daughter, in my view.  The mother knew nothing of the attempt.  The mother was not present in court, having suffered broken ribs, and, as a result, pneumonia. 

11. The mother in her affidavit filed 19 May 2016 says her son Y now aged six was having a tantrum because he didn’t want to go to bed.  He lashed out with his foot and kicked her in the ribs, thereby breaking them. Having regard to what these children have been exposed to, it is not surprising that Y kicked his mother.  It is certainly open to infer that he has learned this behaviour from his parents and siblings. 

12. The four boys have not spent any time with their father since December 2014.  They have disclosed to the family consultant that they are scared of their father.  Having regard to his own admissions that he yelled and screamed in their face and admitted to pulling the children by their hair and twisting their hair, this is not surprising at all. 

13. The independent evidence satisfies me that all of the children have been exposed to, and are still being exposed to, serious acts of family violence and abuse, as defined in the Family Law Act.

The competing proposals

1. The father seeks order for equal shared parental responsibility and a gradual increase in time supervised for approximately three months by his mother and thereafter unsupervised. 

2. The mother seeks sole parental responsibility for the four boys, no orders for V and that the boys spend time with their father at the contact centre at (omitted) each alternate weekend. 

3. The Independent Children’s Lawyer seeks orders for the Minister of the Department of Family and Community Services to intervene, that the Minister have sole parental responsibility for the five youngest children, inclusive of V, that the Minister determine where the children live and that the matter be transferred to the Family Court of Australia or, in the alternative, in the event the Minister does not intervene, the mother have sole parental responsibility for the children, they live with her, spend no time with the father and the mother engages with Brighter Futures and the transfer to the Family Court of Australia. 

4. The only agreed or uncontested relevant fact is that the children have all been exposed to serious acts of domestic violence. 

The law

1. The objects of Part VII of the Family Law Act is

   a)to ensure the best interests for the children are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child;

   b)protecting children from physical or psychological harm from being exposed to abuse, neglect or family violence;

   c)ensuring the 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 the children.[6] 

   [6] Section 60B Family Law Act (Cth) 1975

2. As to what constitutes “meaningful”, Brown J in Mazorski& Albright[7], said this:

   “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”.

   [7] Mazorski & Albright (2007) 37 Fam LR 518

3. Unfortunately in this case the independent evidence from the Department, Police and the schools all point towards these parents having a significantly detrimental effect on their children.  The material leads me to the view that there is a negative or harmful consequence of involving these parents in the lives of their children. 

4. Neither has the capacity to protect their children from physical or psychological harm from being exposed to abuse, neglect or family violence. Neither parent can meet the obligations and objectives set out in section 60B(1)(c) & (d), in my view, either.

5. I note that the mother has engaged with Brighter Futures.  Despite this, the four boys still behave badly, one having broken her ribs earlier this month.  Their attendance at school can only be described as woeful. 

6. The father says he has received counselling, enrolled in an anger management course.  Having regard to the reported disclosures made by V, I cannot be satisfied that he has gained any insight.  The fact that he knows nothing about V’s reported attempt on her own life leaves me with no real alternatives than to find he either is not interested or does not care. 

The statutory relevant provisions

1. Section 60CC(2)(a) – At this time I can see, based upon the independent evidence, no positive benefit to these children in having a meaningful relationship with either of their parents.  The material leads me to the view that neither parent has the capacity to understand what these children need. 

2. Section 66CC(2)(b) – both of these parents have exposed the children to family violence, neglect and abuse.  In M & M, 2000 decision, Malone J recognised the far-reaching effects of inter-spousal violence on children when he said;

   “The father’s abusive behaviour represents a multifaceted danger for the children.  There is a risk of violence to them personally and injury.  There is a risk that violence poses when it involves living with fear, insecurity and vigilance.  There is the ongoing fear that the father will emotionally or physically abuse the mother they love.  There is a danger that E will learn from the father’s abusive behaviour that abuse is part of life for females and becomes accepting of such behaviour.  There is a danger that both children will come to believe in the father’s abuse of the mother that women are lesser beings”. 

1. The same can be said in this case, the only thing that I would change in relation to Malone J’s comments is rather than use the word “the father”.  I would replace that with the words “the parents”. 

2. The behaviour of all of the children, as reported in the subpoena documents, suggest that they have all suffered some of these effects already.  The two older children engage in physical altercations.  The four younger children engage in physical altercations.  They have, in my view, all learnt that violence is an appropriate response to conflict. 

3. I am satisfied, based upon the independent material and the parents own admissions that these children are in need of urgent protection from their parents.  

4. Section 66CC(3)(a) - V wants to live with her mother, and the boys all want to see their father but want him to stop yelling and screaming at them and to stop calling them names. 

5. I note that V told the family consultant that she wants to live with her mother but does not want to share a room with the boys or follow her mother’s rules.  Neither V or U expressed any worries or concerns about the boys being in the care of their father.  Having regard to the alignment between the father and the girls and to the disclosures made by V, I cannot place any real or significant upon what the girls’ views are. 

6. Having regard to the boys’ young age and that I believe they have no understanding of the negative impact both of their parents have in their lives, I place little weight on their views also. 

7. Section 60CC(3)(b) – at this stage it is difficult to make any findings about the nature of the relationship between the children and their parents.  That must be determined at final hearing. 

8. Section 60CC(3)(c) – both of these parents have made decisions about the lives of the children on a unilateral basis since separation.  There is no effective communication between the parents at all.  The independent evidence suggest that the children dictate whether they go to school or not, for example. 

9. Section 60CC(3)(d)  – based upon the evidence to date, I am satisfied that the children will all benefit from being separated from their parents.  It is anticipated that, should the department intervene, they would work extensively with both parents to ensure they begin to understand the disastrous effect they have had on the children and what is required of them, to learn to be adequate parents into the future.  I am sure that the children will be adversely affected by being separated from each other, if that indeed happens.  However, the need to protect them far outweighs this concern. 

10. Section 60CC(3)(f)  – as I previously stated, I am of the view that neither parent has the capacity to provide for the needs of the children, including their emotional and intellectual needs. 

11. Section 60CC(3)(i)  – both parents have displayed an extremely poor attitude to their responsibilities of parenthood.  This was so while they lived together and has, it would seem, deteriorated since separation. 

12. Section 60CC(3)(j)  – I have already made findings in relation to family violence, and the circumstances revealed that the family violence continues, now with children engaging in it. Urgent preventative steps need to be taken. 

If the department decides not to intervene, what then? 

1. First, that would be very sad and dangerous for these children, in my view.  They would continue to be exposed to neglect, abuse and family violence, no matter which home they were to live in.  I must of course consider with which parent they should live in those circumstances. 

2. The decision is one in which I must decide which of these two parents pose the lesser risk for these children.  That is difficult to do in these circumstances. 

3. Both parents admit to family violence.  Both have failed to ensure the children in their care attend school.  Both have exposed the children to abuse.  Both have neglected the children. 

4. The independent evidence concerning V disclosures that she is in serious danger.  She is left unsupervised for long periods of time.  She does not attend school regularly.  When she does, she is emotional, disruptive and unable to engage properly.  The attempted suicide and the father’s response to that is very alarming.  Those factors, in my view, make it impossible for me to decide that the children should be in the care of their father. 

5. Reluctantly and only in circumstances where the department will not intervene, I am of the view that the children should live with their mother, as she poses a slightly lesser risk to them. 

6. Section 61DA – there are reasonable grounds to believe that both parents have engaged in abuse of a child and family violence.  Both parents admit to exposing the children to family violence, and the independent evidence reveals abuse.  In those circumstances the presumption does not apply.  In the event the department intervenes, I am of the view that the Minister should have parental responsibility for the children. 

7. In the event the department does not intervene, the mother should have the sole parental responsibility for the children.  The parents do not communicate and on any view of the evidence could not make decisions together for the benefit of their children. 

8. If I order that they share parental responsibility equally, I am of the view that this would expose the children to further conflict, which is obviously not in the best interests of the children. 

9. The Independent children's lawyer urges upon me that I should transfer the matter to the Family Court.  I am not satisfied that this matter, notwithstanding the serious allegations of abuse, is a matter that is suitable for the Magellan list, having considered the Magellan protocol. 

10. The parties are at some advantage, although they will ultimately be able to decide that, being in my docket, because I have availability for trials earlier than most.  In those circumstances I will not transfer the matter.  But I make these orders, and a copy of these will be made available to solicitors.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 30 May 2016