Sheffield and Tomlin

[2017] FCCA 182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEFFIELD & TOMLIN [2017] FCCA 182

Catchwords:
FAMILY LAW – Interim parenting – allegations of serious family violence by mother’s partner supported by police records.

Legislation:

Family Law Act 1975, ss.11F, 67Z, 65DA(2), 62B

Applicant: MR SHEFFIELD

Respondent: MS TOMLIN

File Number: MLC 2400 of 2015

Judgment of: Judge Harland

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Melbourne

Delivered on: 31 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Szabo

Solicitors for the Applicant: Peter Szabo Family Law

The Respondent: In person

Counsel for the Independent Children's Lawyer: Ms Kourtis

Solicitors for the Independent Children's Lawyer: Mckean Park Lawyers

ORDERS

1. The children X born (omitted) 2004, Y born (omitted) 2007, and Z born (omitted) 2012 (“the children”) live with the father.

2. As facilitated by the Independent Children’s Lawyer, the father is to collect the children on the afternoon of 31 January 2017 by arrangement with the maternal grandparents. 

3. In the event the Independent Children’s Lawyer advises chambers that the children have not been placed into the father’s care pursuant to order 3 a recovery order will be issued.

4. Subject to the maternal grandparents providing their consent to the Independent Children’s Lawyer, the children spend time with the mother at the maternal grandparents’ home as follows:

   (a)Commencing 3 February 2017, from Friday after school until Monday before school on alternate weekends.

   (b)Commencing 7 February 2017, every Tuesday night after school until Wednesday morning before school.

5. The mother is restrained from allowing the children to attend the mother’s home.

6. Handovers that do not take place at the children’s schools will take place at the maternal grandparents’ house.

7. The Independent Children’s lawyer is granted leave to apply to chambers at short notice.

8. The father produce the children to Level 5, Commonwealth Law Courts, 305 William Street, Melbourne, Victoria at 10.00am on 1 February 2017, for the purpose of the Independent Children’s Lawyer explaining these orders to the children.

NOTING

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2400 of 2015

MR SHEFFIELD

Applicant

And

MS TOMLIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter comes before me today for an urgent interim hearing as a result of significantly concerning events which have occurred and escalated in recent months.  There are three children of these proceedings - X born (omitted) 2004 (“X”), aged 13 Y born (omitted) 2007 (“Y”), aged 9 and Z born (omitted) 2012 (“Z”), aged 4 (“the children”).

3. The children and parents have been involved in several interventions with the Court and the Department of Health and Human Services (“the Department”). The proceedings were commenced in the Family Court of Australia, and Ms M prepared two Children and Parents Issues Assessments in that Court dated 15 June 2015 and 18 November 2015. The parties and children participated in a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) report on 29 July 2016, and the children have also recently been interviewed by the Department as recorded in their updated section 67Z report dated 30 January 2017. The parties are due to attend for a full family report in March 2017. The matter is listed for final hearing in June 2017.

4. There is significant subpoenaed material from Victoria Police before the Court today.  It is clear from the material that there has been an escalating pattern of conflict, and escalating concerns about risk, which has increased since the last time the matter was in Court in July 2016.

5. The first report of Ms M indicates that the key issues in dispute was:

   ·    whether or not the children should spend additional overnight time with their father each week,

   ·    the ongoing acrimony between the parents,

   ·    the impact of the acrimony on the children's wellbeing, and

   ·    the father's ability to demonstrate an inclusive approach to his relationship with X. 

   X is not the biological child of the father.  X was not aware that the father was not his biological father until the mother told him. That has caused significant escalation and conflict between the parties, and has also caused some considerable emotional harm to X.  However that is not the focus of the issues of concern today.

6. It is also apparent from the material that the parents have involved the children in the dispute between them, and the children are acutely aware of the conflict between their parents.  It appears that there is such a level of distrust and lack of communication between the parents that this is something that has led to, in some instances, the children falling through the cracks.

7. The level of conflict between the parties represents a risk of long term emotional harm to the children, as it can impact on their development in the years to come.  Again, that level of conflict is not the focus of risk for today's hearing.

8. The matters that bring this case back before the Court on an urgent basis today are whether or not the children are at an unacceptable risk in the mother's care due to the family violence between herself and Mr L, and alleged drug use by the mother.  It is the father's case that the subpoenaed documents from the Victoria Police support his concerns that the children are at an unacceptable risk if they are left in the mother's care.

9. The father also alleges that he has concerns about neglect and about the mother using drugs.  He seeks that all three children come into his care.  His position at the end of the interim hearing was that all three children live with him, and that the interim parenting arrangements that were put in place in July 2016 be reversed, such that the children would spend substantial and significant time with the mother on the proviso that the mother and children stayed with her parents and not at the mother's home.

10. The mother appears today without representation and therefore is at some disadvantage.  She has not filed any material in response to the material that the father has filed urgently.  She has inspected the police material and has made submissions today.  The mother's case is that the children are not at risk in her care.  She says that she is not in a relationship with Mr L, and that she has been the one to call the police when Mr L has attended her home in breach of intervention orders.

11. Alternatively, she says that if the Court finds that the children are at risk in her care, then they are also at risk in the father's care.  She says that, and this is not on affidavit but says from the bar table, that she believes Mr L is angry with the father and is more likely to attend the father's home rather than hers.  She says that currently Mr L is on remand.

12. The Court was greatly assisted by the submissions of the Independent Children's Lawyer who detailed the relevant portions of the subpoenaed documents from the police, and has provided a fair and accurate summary of those records which I have read. I note that exhibit B is subpoenaed material with respect to Mr L, and exhibit C is subpoenaed material with respect to the parties, are both produced by Victoria Police.  Exhibit A is an incomplete drug test, and I will return to this.

13. The Independent Children's Lawyer submits that the material indicates that since July 2016, there has been a qualitative difference in the conflict and the risk issues concerning these children, and having examined the police material I accept that that is certainly the case.

14. As I explained during the course of this hearing, the Court is faced with a difficult position today.  This is an interim hearing and the evidence has not been tested.  There are many facts in dispute between the parties, and both parties make allegations of risk against the other.  Whilst I cannot make contested findings of fact unless there is independent material, it is the case that I am obliged to make orders in the best interests of the children that place them at the least risk.  It is very much an assessment about risk.

15. One of the issues that is in dispute that will be, I have no doubt, the subject of testing at the final hearing in a few months' time, is the nature of the mother's relationship with Mr L.  The mother says that she is not in a relationship with Mr L.  In her affidavit, which was prepared when she was legally represented and filed on 27 July 2016, at paragraph [288] and following she says that he is not her partner, and that whilst he has criminal records he is not a danger.  She says that both parties met Mr L at the same time and he was a friend of the father.  She says that the father has broken the law as has Mr L and that there was no reason why Mr L should not be around the children.

16. There is real doubt about whether or not the mother continued to be in a relationship with Mr L at that time and whether or not she continues to be.  There are inconsistencies in what the mother says and what is in the subpoenaed material.  Even if the mother was not in a relationship with Mr L at that time, and is not in a relationship with him now, that does not alleviate the concerns about the risk Mr L presents to the children as will become apparent from the discussions of the police material subpoenaed.

17. The police indicate in their records that Mr L is well known to them, and is well known to them for family violence issues and drug use. It is apparent from the record of pending charges that Mr L has come to the frequent attention of the police for offences including breaches of intervention orders, driving offences, stealing offences, weapons offences and drug offences.  It is also apparent from the records that Mr L has come to the police's attention at the mother's home before and after the orders made on 29 July 2016. 

18. The records indicate the police were called out to the mother's home with respect to Mr L on 20 November 2015, 2 January 2016, 22 February 2016, and 8 July 2016, prior to the matter being back in Court before me.  Those are indicative of the mother being in a relationship with Mr L, at least up until July 2016, and there is some evidence to support a concern that she continued to be in relationship with him.  The fact that she was in a relationship would not be of concern if it were not for the very concerning incidences of family violence that has been reported and breaches of intervention orders.

19. With respect to the issue as to the nature of their relationship one matter of some concern, which is inconsistent with what the mother has said today, is a text exchange between the parties on 27 October 2016. It is annexed to the father's affidavit.  In that exchange, the mother asks if the father and his fiancé would sit down with Mr L and herself to discuss matters.  She went on to say that he knows he has made mistakes but is not a bad person and wants to clear the air, and that he adores the mother and the children and has started to do positive things such as a men's behaviour change course, and that what has happened in the past will never happen again, and that he is also doing a drug program.  She goes on to say that sending him to jail, as well as sending the father to jail will not assist, and says that both Mr L and the father have done the wrong things.

20. There is then a further exchange between the parties where as it was referred to a bargaining exchange with respect to dropping various intervention orders.  That text message suggests that the mother continued to be in a relationship with Mr L in at least October 2016.  Even though by that stage there was an intervention order in place protecting the children from Mr L, she was still seeking to resolve those issues and referring to him adoring herself and the kids.  Why would it be necessary for the four adults to sit down and hash things out and make reference to Mr L and the children if the mother and Mr. Mr L were not in a relationship?  This is an issue that will need to be tested at the final hearing.

21. I raise that point because it is one aspect of concern about the mother's ability to protect the children from harm from Mr L.  It is clear from the police records that Mr L represents a risk, not just to the children, but also to the mother herself.  It is clear that there it is a volatile relationship in that he has been violent towards the mother at times when the children have been present, and at times when the children have not been present.  It is also apparent from the records that this pattern of violence has increased, not decreased, in the past six months.  The fact that the children have not been present for each of these incidents is more a matter of accident rather than design.

22. I have no doubt that at times Mr L has been violent towards the mother.  She has made those reports to the police.  I am also mindful that it can be incredibly difficult for a person who has been subjected to that kind of behaviour in a relationship to disentangle themselves from that relationship.  This is not being judgmental about the mother.  It is simply an issue of having to assess whether or not the children are at risk in her care.

23. It is also of some concern that after the orders were made in July 2016, the Independent Children's Lawyer, asked the mother to provide and undertaking that she would not bring the children into contact with Mr L.  The mother through her then lawyers indicated that she was willing to provide that undertaking.  There is no evidence that an undertaking was provided to the mother for signing.

24. At [6(c)] and annexure V of the father’s January 2016 affidavit, on 6 September 2016, the mother left the children in Mr L's care whilst she was at the cinema.  That is apparent from the text message that is annexed to the affidavit.  The father then approached the police to take out an intervention order to protect the children from Mr L.  He successfully applied to the Magistrates’ Court of Victoria at Sunshine and obtained an interim intervention order.  The police records indicate that Mr L was served with the interim order at 11.55am on 12 September 2016.  At 5.00 pm that day, after having been served with that intervention order, he attended the mother's home and the police were called.  The police records further indicate that on 15 September 2016, they arrested Mr L and searched his car and found methamphetamines and other paraphernalia, including a serrated knife.  There was no indication in the police records as to where he was at that time.  That is incredibly concerning.

25. There is in indication in the police records that Mr L said he was in the area to see the father who was a friend of his.  If that is an accurate record, that is somewhat surprising given he had just been served with an intervention order where the father applied for it on behalf and protection of the children.

26. The Sunshine Magistrates' Court made a two year final intervention order against Mr L for the protection of the children in October 2016.  Significantly, that order prohibits Mr L from approaching the children, but also from approaching the mother's home.  Despite this, Mr L has, it is apparent from the police records, continued to breach that order. The police records show that Mr L is facing criminal charges with respect to breaches of intervention orders.

27. It is also clear from the police records that there have been at least two incidents between the parents where police have been called on 26 October 2016, and also in December 2016.  The parents have different versions as to what occurred on those occasions, and they will also be a matter for testing of evidence at the final hearing.

28. There is also a dispute between the parents as to what happened on 9 December 2016 which lead to Y going to a dance with her stepmother when she was at the mother's home.

29. What is apparent from the police records and not in dispute is that there was a heated exchange between the parents on 14 December 2016.  The police attended and the mother was arrested, and the mother damaged the door to the property.  The parties give very different versions as to what occurred on that day, and the mother says that she was reacting to the father assaulting her.

30. What is also of great concern to the Court is what is recorded in the police records on 18 December 2016, which is another incident between the mother and Mr L.  That concerns a report by the mother and a friend of hers as to another breach by Mr L of the intervention order in an incident where he physically assaulted the mother.  The police record taking photos of the bruising to the mother, and also record that the mother told the police that Mr L made threats to kill her and burn down the house.  The mother also reported on that occasion an earlier breach by Mr L of the intervention orders in September.  The police records do not indicate that the children were present on that occasion.

31. The police took out an intervention order on the father’s behalf against the mother, and there is an interim order in place.

32. Since that incident, X and Z have lived with the mother and spent no time with the father and Y, and Y has lived with the father and spent no time with the mother and X and Z.

33. The Department recently interviewed the children and refer to this in their updated section 67ZW report. Having read that report, I am not confident as to how aware the department is of the level of police intervention in recent times.

34. In the interviews Y tells the Department worker that she wishes to stay with the father and his fiancé.  She says that she feels safer at the father’s home.  The police records indicate Y telling the police that she did not feel safe in the mother’s home because of Mr L.

35. X told a child protection worker that he preferred to stay at his mother’s home and he is not sure if he wants to see his father.  He says that he has not seen Mr L since some time before Christmas but enjoyed spending time with him.  He indicated that he is not happy with his father as he feels that he is making Y lie.  I find that comment concerning.

36. Z, being only four, has indicated that she did not have any bad things to say about either of her parents and misses her sister.

37. In addition to the issues of family violence, it is necessary to discuss the issue of risk with respect to drug use.  There are allegations about both parties using drugs has been a feature in this case.  The Independent Children’s Lawyer has made several requests of the parties to undergo drug tests.  The father has complied with all of those tests, and the test results have been negative. 

38. There is some reference in the police material to them believing that the mother and Mr L were under the influence of drugs, and there is a reference to that in 8 July 2016.  The Independent Children’s Lawyer requested the parties undergo a drug test that day.  The father provided a drug test, and the mother provided a drug test which was clear on 11 July 2016.  Given that that drug test took place several days later, it is not indicative one way or the other as to whether or not she was under the influence of drugs on the day the police made that observation.

1. There are further references in the police material to concerns about the mother and Mr L being under the influence of drugs.  The Independent Children’s Lawyer made further requests of the parties to undergo drug tests on 16 December 2016.  The father provided a clear test.  It was undertaken that day.  The mother provided a test, and it is exhibit A, which indicates that the test was undertaken that day.  However, the test is incomplete.  It is quite odd that it does not refer to any of the usual indicators, such as creatinine levels, and it does not indicate as to whether or not the test was a supervised drug test.

2. A further request was made by the Independent Children’s Lawyer for the parties to undergo drug tests on 17 January 2017.  The father provided a clear drug test on 18 January 2017.  The mother has not provided a drug test, so the issue of drug use remains an issue of concern with respect to the mother.

3. The subpoenaed material goes up to late December 2016 when the Independent Children’s Lawyer issued the subpoena.  I therefore do not have any material before me as to what the current status is with respect to Mr L and any charges he faces.

4. The Independent Children’s Lawyer made the submission that the mother has been the primary carer of the three children, and that if a radical change of the living arrangements is made, that will be difficult for the children and particularly for Z, who is only four.  However, she further submitted that, given the risk issues that she has highlighted through the subpoenaed material, that is another issue that simply cannot be ignored.  I cannot give preference to maintaining the current arrangements over and above issues of risk.

5. It is apparent that everyone agrees that the children enjoy a good relationship with the mother’s parents.  X refers to that to the child protection worker.  The father deposes in his January affidavit that the mother’s father contacted him in late December 2017 to express concern about the children being in the mother’s care, being concerned both with respect to Mr L frequently being at the home and the mother using drugs.  As I indicated earlier, the mother has not yet put on material in response to the father’s affidavit, and I have no material from her parents.

6. I am satisfied that the children would be at an unacceptable risk if I leave the current arrangements in place.  I am also of the view that it would be in the children’s best interests if all three siblings are together.  There is some concern expressed by the Independent Children’s Lawyer, and consistent with the material, that there may be some real resistance by X to an order that would see him living in the father’s house.  There is some reference, and the father acknowledges this himself in his January 2017 affidavit when he refers to it being best for X to live with the maternal grandparents.  I endorse the Independent Children’s Lawyer’s views that it should not be up to X.  X should not feel like he has a choice as to where he lives.  It is important for X that he understands he is a child and that other adults have to make the decisions.  One of the important things is going to be X to understand that it is me who is making orders about where I think the children should live pending further order.

7. The Independent Children’s Lawyer will explain the orders to the children.

8. It is of some comfort that the parties agree that the children have a good relationship with the mother’s parents and it seems are satisfied that they represent a protective influence for the children.  Because of this, and in spite of me not having any material from the mother’s parents – which is not a criticism of her– I am prepared to make orders that provide for the children to spend substantial and significant time with the mother, provided that they do not stay at the mother’s home and stay with her parents.  I will require the mother to provide the Independent Children’s Lawyer with her parents’ contact details so that the Independent Children’s Lawyer can speak to the children.

9. I should indicate that at this point the mother became extremely distressed and left the courtroom. 

10. I am prepared to have the children spend time with the mother at her parents’ home, subject to the Independent Children’s Lawyer having the grandparents’ details and being able to speak to them to ensure that they are willing to have the mother and the children stay at their home.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  3 February 2017