Sawyer and Reid
[2009] FMCAfam 228
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAWYER & REID | [2009] FMCAfam 228 |
| FAMILY LAW – Interim application for sole parental responsibility – competing applications where original orders are under appeal – extreme conflict between the parents – child acting violently towards the mother – risk of alienation – transfer to the Family Court of Australia. |
| Applicant: | MS SAWYER |
| Respondent: | MS REID |
| File Number: | SYC 1023 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 4 March 2009 |
| Date of Last Submission: | 6 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| The Applicant: | Self-represented |
| The Respondent: | Self-represented |
| Solicitor – Advocate for Independent Children’s Lawyer: | Ms Gathercole |
| Independent Children’s Lawyer: | Abrams Turner Whelan |
ORDERS
The Father be restrained from doing anything to involve the Child [G] born in 1999 in any proceedings in any Court against any other person in the Child’s family.
The entirety of the proceedings be transferred to the Family Court of Australia to be listed for directions on 18 March 2009 at 11.00am, with the recommendation that the matter be expedited.
IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Reid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1023 of 2007
| MS SAWYER |
Applicant
And
| MS REID |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
There are in effect three applications in a case before me, one initiated by the mother and two initiated by the father. The mother is a 44‑year‑old [occupation omitted]. The father is 53 years old and describes himself in his documents as a [occupation omitted].
Cohabitation commenced in September 1994. The parties married in May 1996. There was what appears to have been a first separation in March 1999 and then a final separation in August 2005.
The proceedings relate to two boys, [G], who is aged 10, and [J], who is aged 8.
It is very important to recognise that the existing orders were made by His Honour Rose J in the Family Court on 15 November 2006 following contested proceedings. Both the mother and the Independent Children's Lawyer urged me to read his Honour's judgment. Rose J heard the case over three days on 6, 7 and 10 July 2006. Each of the parents were represented and there was an Independent Children's Lawyer as well as a family report. As I have indicated, Rose J made the current orders.
As I have indicated, both the mother and the Independent Children's Lawyer urged me to read the judgment as part of my consideration about what to do in this case, and having read the judgment now, I agree that it is important relatively recent background material that helps me to understand the nature of the relationships in this family, the issues that arise and thus it helps me to put in context the history of this matter since the orders were made.
I think it is important to summarise the judgment and some of the relevant findings.
Firstly, his Honour made clear findings of credit favouring the mother over the father.
Next, his Honour found that the boys had expressed views that indicated they wanted to live with the father but these views were influenced to a material degree by the antagonistic attitude of the father against the mother and the manner in which the father inculcated the children with his attitude.
Whilst the children have a good relationship with their father and probably enjoy a close attachment with the father, there are disturbing aspects of the relationship between the father and the children due to his manipulation of the children.
His Honour found and made a positive finding about the family violence that was perpetrated by the father against the mother. Perhaps the most truly disturbing aspect of the present applications before me is that the more recent evidence in these proceedings, and specifically I'm talking about the incidents that have occurred when [G] alleges that his mother has assaulted him. In relation to the first incident, the mother alleges that in effect, though not using these words, [G] assaulted her. What is truly disturbing about these recent incidents is that they are a clear indication, in my opinion, based on my experience and on the evidence that is before me, that [G] is simply acting out what he has seen his father do to his mother when [G] was a child.
His Honour further found that the father had a very limited capacity to provide for the emotional needs of the two children. His Honour did not doubt the loving relationship that exists but expressed concern about ‑ and I quote:
The direct and indirect methods that the father has used to both undermine and marginalize the relationship that the two children have with their mother and visibly using that approach to further his own relationship with them.
His Honour described the father's attitude towards the mother as, and I quote:
… unrestrained, contemptuous, demeaning and other times patronising.
I can't avoid making the observation, based on the period that this matter has been in my docket that this is also the preliminary impression I have myself formed about the father based on the manner in which he has conducted the various proceedings before me.
Rose J specifically acknowledged and balanced the likelihood that [G] in particular would have a strong desire to spend more time with his father but that this had to be balanced against the benefits of living free from the corrosive influences in the father's household.
Further, Rose J seems to have acknowledged the likelihood that there will be further proceedings describing the parties as having an entrenched conflict.
His Honour made clear findings about sole parental responsibility. His Honour emphasised the need to protect the children from the sphere of destructive influence that the father exercises upon the children.
At page 173 his Honour predicted that the father would not take a positive and constructive attitude to the orders that he would make given the depth of the animosity that he has displayed in the past towards the mother. With respect to his Honour, he was undoubtedly correct.
But the father has appealed the decision of Rose J to the Full Court of the Family Court which has heard but not determined that appeal. Until that decision is overturned in whole or in part, the orders and the judgment stands. I must say, for my part, I would be surprised indeed if the father's appeal was successful.
It is important to set out a history of the proceedings since 15 November 2006. Since that date the following applications have been filed in these proceedings and it should be noted in my docket.
Firstly, on 28 February 2007 the father filed a contravention application. Secondly, on 29 September 2007 the father filed an application to vary the existing orders. On 12 March 2008 the father filed a further application to vary the existing orders. On 28 April 2008 the mother filed a contravention application. On 5 May 2008 the mother filed another contravention application. On 8 May 2008 the father filed a contravention application. On 26 February 2009 there was the mother's application to vary the orders. On 26 February 2009 there was also the father's application to vary the orders, and then, on 5 March, it should be noted the day after I heard the interim proceedings, the father filed yet another application to vary the existing orders.
Until the most recent applications that have resulted in the present judgment, I had formed the view, supported at times variously by the mother, father and the Independent Children's Lawyer, that the various applications ought not to be dealt with until the decision of the Full Court was actually available. The circumstances of the most recent applications change that and makes the situation much more difficult.
The application before the Court can be summarised as follows.
The mother's application seeks orders to the following effect: that she have sole parental responsibility in broader terms than that allocated to her by Rose J and specifically to include sporting activities. She seeks a suspension of some of the orders made and an order that the father be restrained at all times from attending the children's school and extracurricular activities, including sports. There are orders about communicating information, and provision of sporting equipment. Significantly, the mother also seeks orders the effect of which are that a recovery order be made on an ongoing basis so that in effect if there is a breach of the orders that the New South Wales Police are authorised from time to time to go and retrieve the children. She also seeks orders that the children attend on their treating psychiatrist and a number of other ancillary orders.
The father's application is to the following effect: that the children reside with him; that the children spend time with their mother as agreed; and that he have sole parental responsibility. He also seeks an order about the return of shoes and orthotics.
The father's latest application, that is the one that was filed yesterday, seeks orders in the following terms:
Orders as per the existing application before Magistrate Altobelli [sic] and other orders as the Court sees fit.
So what is before me is in effect competing applications the effect of which would be to substantially vary the orders made on 15 November 2006 all in the context of interim proceedings.
The evidence before me consists of the affidavits of the mother and the father together with the oral evidence that they each gave before me this afternoon. They present divergent views about recent events and about the causes of these events. Doing the best I can in this context where I can't make findings, it seems as if the following has occurred:
a)[G] has run away from his mother's home on 11 February 2009 at least once and possibly more since then.
b)It is common ground that [G] has run away several times since the orders made by Rose J.
c)[G] has missed school several days this term when he was living with his father.
d)[G]’s behaviour towards his mother and his brother has deteriorated. At the very least it is disruptive. At most it could be described as destructive.
e)The level of ongoing conflict between the mother and the father would be conservatively described as extreme.
f)An incident occurred on 11 February 2009. The father says [G] was assaulted by the mother but [G]’s own statement to the police, which was tendered by the father, leads to another possible, indeed I suggest probable interpretation, and that is that [G] assaulted his mother whilst she was trying to discipline him. Irrespective of whose description of this incident I accept, what is clear is that it was an ugly incident in which force was used by [G] against his mother and by the mother against [G].
There appears to have been a second incident that took place on Monday, 2 March at the home of the mother. The father's evidence about this, given to me this afternoon, is based on what [G] told him on Wednesday night, that is 6 March. The mother's evidence is a recitation of what she says occurred.
The transcript of the proceedings today will set out the evidence of both the father and the mother in this case.
If I accept that what [G] told his father is as represented by his father, then what jumps out from the father's evidence is that it was [G] who was the instigator of this incident when, by his own words, he started to remove paintings off the wall.
The other thing that jumps out from the father's own evidence about what [G] says is that there was a clear break in the sense that there was a struggle after the paintings were taken down and then the mother moved away and [G] then moved into the kitchen.
According to the mother's evidence, however, [G] was the instigator of the incident, there was an unfortunate struggle but the only reference to the knife, which is the centrepiece of the father's evidence and the basis of his concerns about the child's safety when with his mother ‑ the only significance of the knife is, according to the mother, that she moved a knife from a bench to the sink and that [G] then started making comments about the mother wanting to do him harm.
The incident, of course, is quite inconsistent with what appears to have happened afterwards. The mother gives evidence that [G] was calm and slept through the night that night and the next night and indeed all seemed normal until the Wednesday morning.
The father doesn't accept the mother's version of these events and gives the impression of unequivocally accepting what [G] has said to him happened in this case. In any event, there are two recent incidents that raise the level of concern about [G] and indeed [J] and this family.
The incident or incidents have resulted, in the very least, in AVO proceedings by the father against the mother and possibly criminal proceedings for assault against the mother. The mother believes this is unlikely, and I must admit, I tend to agree.
The father has involved both boys in the AVO proceedings and has indicated clearly to me that he wants [G] to give evidence against his mother in the Local Court AVO proceedings.
The father has recently been arrested and charged with breach of an AVO that the mother had against him.
The father asserts that the incident of violence by the mother against [G] on 11 February is merely one of four such incidents in the last
12 months and indeed that the most recent incident on Monday, the 2nd, would make it at least one in five.
On 4 March, when the matter was first before me, I was informed from the Bar table that the situation had calmed down somewhat and that both parents had reverted to the orders made by Rose J, but it was clear to me, at the time that I was writing these reasons yesterday, that the situation was a very fragile cease-fire rather than a resolution to a deep‑seated ongoing conflict. Indeed the events of the last 24 hours with [G] again running away to his father confirm the extent of the difficulties in this case.
The mother recognised that in reality she is powerless to stop [G] running away. These are not her words, I stress, but it is a conclusion that is clearly open based on the history of this matter.
It is apparent to me that if [G] did run away the father would not return him unless there was an order of the Court specifically to that effect or [G] chose to return, and the interesting thing is that that's what he seems to have done consistently in the past.
Chaos reigns supreme in this family. Neither parent is happy with the orders of 15 November 2006. Subsequent events indicate, in my opinion, they are no longer workable. Two boys are caught in the horrible cross‑fire of their parents' conflict. In their own ways, they are both contributing to this, but I must say, that I have formed a strong impression that the father continues to manipulate the children and lacks the capacity to prioritise their needs over his, but the real dilemma is what to do.
The father says both boys should live with him. The problem is, that there is no evidence before me to indicate that any change to existing orders in relation to [J] would be warranted, none whatsoever.
In relation to [G], the argument, express or implied, is that firstly, he is at risk in his mother's care, and secondly, his actions demonstrate a strong desire to come and live with his father.
I reject both of these arguments. [G]’s own statement to the police indicates that he initiated the physical altercation. He says, at paragraph 7 of his statement “I wrapped both my arms around” his mother. At page 8 he says “I was still holding onto her and I pushed her into the car”.
By his own admission, he was the perpetrator of this event and even on his description of the incident, I would find, and of course this is hypothetical, that the mother was simply resisting his physical advances and was trying to reasonably discipline him.
Both parents have at times described [G] to me as being a physically large boy for his age and it is clear he is an accomplished sportsman, even at age 10, but to construe this event as demonstrating a risk to him in the mother's care is, with the greatest of respect, absurd. This is on the basis of [G]’s own statement to the police.
It is a wonder that the father could construe this event as an assault, let alone use it to launch AVO proceedings in the Local Court. I predict they will be short‑lived indeed. If anything, this incident is disturbing because it could well be an acting out of what [G] has seen his father do to his mother or a reflection of his father's attitude towards his mother.
As for the later event on 2 March, if there is any doubt, I accept the mother's evidence over the father's evidence and even on the father's own version of what [G] said, what is consistent with the incident back in February is that [G] was the instigator of the same.
As for the suggestion that [G]’s running away is a tangible sign of his desire to live with his father, I reject the same. Rose J's findings about the children's views seem to ring as true today as they did two years ago. They are influenced by the father's behaviour and negative attitudes. In any event, [G] is still only 10 years old, and as the oldest child in a highly conflicted relationship between his parents, I would not place much weight on his views.
The situation is, in my opinion, far more complex than [G]’s actions manifesting his views even though that is exactly what the father would like to believe.
Moreover, the father's application for sole parental responsibility and the time with the mother as agreed is a recipe for disaster in this case on an interim level. There would never be agreement about time with the mother as there exists such difficult issues about communication and such high levels of enmity. But in many respects the mother's application is equally problematic. It is simplistic in the extreme to suggest that a broader order for sole parental responsibility will resolve the deep unresolved issues in this case unless it were accompanied by a drastic reduction in the amount of the father's time with the children. Even more disturbing, however, is her request for a continuing recovery order that enables the police to intervene whenever [G] runs away. That is not an order I am prepared to make on an interim basis. The stress on [G] would, I believe, be completely unacceptable and to make that order would be to pour petrol on the raging fire that is already burning.
The mother seeks orders for the father to be psychologically assessed. There may be merit in a full psychological assessment in the context of the Part 15 report. There are aspects of the father's behaviour, and the mother's behaviour, and [G]’s behaviour that are of concern and in particular, the father simply seems incapable of accepting the decision of Rose J and seems to lack the insight to understand the impact of his own actions on the children.
There may well be personal dysfunction present in the lives of several members of this family.
By way of conclusion, this is a complex case. It is a dysfunctional family that needs urgent assistance by way of timely interventions and the application of appropriate expertise, but for the time being,
I conclude that doing nothing is, in fact, the best thing to do. The existing orders will stand as they are. This is the option that is likely to cause the least harm to the children but it is far from satisfactory. I do intend to make a number of orders, though, of the Court's own motion.
Firstly, I restrain the father from doing anything on his part that would further involve [G] in any proceedings involving any other member of the family. The father does not deny that he has taken both children to Court in relation to the AVOs and openly acknowledged to me his desire that [G] give evidence against his mother. I regard this, and I record this as appalling, and demonstrative beyond any doubt of the father's total lack of insight and his inability to separate his own needs and agenda from his children's needs.
The proceedings in the Local Court are, I suspect, likely to be futile in any event and one would hope that the learned Local Court magistrate would not allow [G] to give evidence anyway, particularly in light of the history of these proceedings.
The second order I make is this. I transfer this matter to the Family Court of Australia with my recommendation that the matter be expedited. This matter needs Court time and it needs it quickly, and in my docket it would not have any priority hearing date until at least December 2009, which is much too late. More importantly, it needs the application of family consultant resources that the Federal Magistrates Court does not presently have access to. The issues are complex. The matter needs psychiatric evidence. I have real concerns about the father seeking to alienate [G] from his mother. Rose J hinted at that in his judgment. The risk of that is much greater now. I have real concerns that the father is unable or unwilling to accept any order that this Court makes.
Finally, even though these are oral reasons, I intend to order a transcript of the same, make a copy available to the parties and place it in the Court's file.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 18 March 2009
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