Skipton & Morgan

[2022] FedCFamC2F 372

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

Skipton & Morgan [2022] FedCFamC2F 372

File number(s):	MLC 7134 of 2019
Judgment of:	JUDGE STEWART
Date of judgment:	11 March 2022
Catchwords:	FAMILY LAW – interim – parenting – best interests of the children – updated family report ordered – family violence found - final hearing adjourned to later date.
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	25
Date of hearing:	11 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr C Allen
Solicitor for the Applicant:	Pentana Stanton Lawyers
Counsel for the Respondent:	Ms Elleray
Solicitor for the Respondent:	Cathleen Corridon & Associates
Counsel for the Independent Children's Lawyer:	Ms Weiner
Solicitor for the Independent Children's Lawyer:	McGowan Family Law

ORDERS

MLC 7134 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SKIPTON Applicant
AND:	MS MORGAN Respondent

ORDER MADE BY:	JUDGE STEWART
DATE OF ORDER:	11 MARCH 2022

THE COURT ORDERS THAT:

1.By consent and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Interim orders are made in accordance with the Minute of Order dated 11 March 2020, marked with the letter "A" and annexed hereto.

2.Pursuant to Section 62G(2) of the Family Law Act 1975 an updated court funded Family Report be prepared by Ms B in relation to the parties and X born in 2011 and Y born in 2014, to be released by 1 December 2022. The parties shall comply with all reasonable directions of the Court Child Expert including making themselves, the children and any other relevant person available at times nominated by the Court Child Expert.

3.The Court Child Expert may inspect all subpoenaed material which has been released to the parties.

4.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

5.The proceedings are listed for Final Hearing for a further 3 days commencing 23 January 2022 at 10.00am.

6.The Applicant file and serve any Amended Application, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.

7.The Respondent file and serve any Amended Response, all affidavits and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.

8.The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.

9.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.

10.Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to [email protected].

11.Pursuant to sections 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 are set out in the fact sheet attached hereto and these particulars are included in these orders.

12.The reasons of this day be transcribed, made available to the parties and placed on the Court file.

13.Each of parties and Independent Children's Lawyer be at liberty to provide to the therapeutic counsellor and/or each of the parties' personal counsellor or psychologist the Family report dated 27 October 2020, the DFFH report of 15 June 21; the Community Plus report of 6 July 2021, the report of Dr C filed 11 June 2020, a copy of these sealed Orders and the transcribed reasons of this day.

AND THE COURT NOTES THAT:

14.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

15.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

16.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

17.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Skipton & Morgan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT

Judge Stewart

1. These proceedings are in relation to X born in 2011 (“X) and Y born in 2014 (“Y”), collectively known as the children. The parties are in considerable dispute regarding the appropriate care arrangements for X and Y. The parties themselves are relatively young, and had their children at a relatively youthful age. The Father is now 32 years old, which means that he would have been 21 when X was born, and the Mother is 30, so she was only 18 or 19 when X was born. The relationship commenced in 2008, with cohabitation commencing shortly after that in 2009. In 2011 and 2014 respectively, X and Y came along.

2. The parties separated physically in 2018, but the evidence suggests that for a period of around about 12 months, save for a couple of weeks, they were exploring possibilities of potentially rekindling their relationship, or at least considering maintaining some sort of friendship for the sake of the children. There are a number of significant issues in this case. One significant issue is that throughout their relationship, the parties appeared to indulge in some abuse of illicit substances. I think that the Father is still concerned about the Mother’s possible use, but otherwise it seems that to some extent, this issue has moved into the background.

3. There are two issues that present as particularly significant. First, the disputed issues of family violence, perpetrated by the Father towards the Mother and vice versa. This case has settled on an interim basis after six days of hearing, and at a point where the evidence has concluded. The second significant issue is whether or not the mother, either consciously or unconsciously, has influenced the children to the point where they now tell the Independent Children's Lawyer that they do not wish to see the Father, and that they are frightened of him.

4. What also has impacted on the children, has been what I describe as a relatively unpredictable and fragmented ability to maintain their relationship with the Father. As I've said throughout the course of discussions with Counsel in this case, the COVID-19 pandemic has not done this family any favours. I agree with Counsel for the Father, that the first six periods of times set out in the report from the D Contact Centre where the Father where the Father was spending time with the children in early 2021, appeared to go well. Unsurprising, there was some nervousness, and there were some issues (if you take a pernickety approach to the report) but overall, the report suggests that the children were really warming up to the Father, enjoying themselves, being cheeky, which is a good sign that they feel reasonably comfortable, and I thought that the Father was interacting with them well.

5. The Mother is critical of the Father because she says that he “showered the children with gifts”, but I think that that is perfectly explicable because of the Father’s love of the children. There is no doubt in my mind that the Father loves his children. In terms of my ability to assess the case as a judge, it seems to me that the children still hold a good deal of affection still for the Father, but that affection is clouded by issues of family violence.

6. The Father has largely denied family violence in this case, although there are some areas where he makes concessions. Most particularly, he makes the concession that he sent those text messages that are annexed to the Mother’s affidavit, which are wholly and utterly inappropriate, and in my view, frightening. We sometimes see cases where people say, “I'm going to kill you”, or make other threatening comments towards people. Some of those types of comments can be discounted to an extent, on the basis that they are situational and reactionary. However, I do not regard these text messages sent by the Father to the Mother in that category. I consider that the Mother would have been frightened, would take the threats seriously, and consider that given the Father’s previous demeanour, behaviour, and violent disposition within the relationship, that he was well capable of carrying out those threats against her and her family.

7. There is much to suggest that the Father has committed family violence, perhaps not entirely as described by the two but largely as described by the Mother in her affidavit material. The parties’ relationship was characterised by systemic, frightening family violence that was both verbal, physical, of a coercive and controlling nature, manipulative, gaslighting, and violence which permeated every aspect of their relationship. I say that on a number of bases. There are disclosures made by the children to both the Department of Families, Fairness & Housing, and to the family report writer, to name at least two.

8. Second, because the evidence in the case has finished, I have had the valuable opportunity to observe both of the parties in the witness box, and the Mother struck me as having a number the demeanour of a person who has been the victim of family violence. This Division of this Court is a specialist Court in terms of family law. I was a practitioner for almost 25 years that specialised in family violence, and as a barrister I have done more parenting cases than I care to recall. I have been a judge in this court for about eight years now, and as such I feel confident that I am able to assess people's demeanour with respect to these issues. I want to stress that, of course, I wasn't sitting on anyone's shoulder during the relationship, and there may well be areas where the Mother has exaggerated what occurred, or remembers it differently to the way the Father remembers, and as can often happen, experienced it differently to the way the Father experienced it.

9. I also want to emphasise that I fully appreciate that my findings of violence perpetrated towards the Mother by the Father are not mutually exclusive. There was also probably violence directed towards the Father by the Mother. Having now had the opportunity to observe the Mother giving her evidence, I can make the observation that she was, at times, strident, histrionic, and angry at times. I can well imagine that, in the context of living within a household where the pall of family violence was ever-present and a constant possibility, that she too would have asserted herself in the relationship. That is the nature of what happens in a dysfunctional, violent family, and the fact the children observe it, not only in terms of direct observation of what is occurring, but also live within that environment where the after-effects of violent incidents continue to live in their minds, they are fearful whether it will happen again. Violence makes home life unpredictable for both adults and children. I am confident that these children have been exposed to family violence, not just during the relationship but also afterwards.

10. I refer in particular to what I find happened at the E Store in the midst of the children attending to see the Father at D Children’s Contact Centre. It is within that context and what I have described as what I regard as being really good signs, in terms of how the children were operating in terms of the visits with the Father. I suspect the Father probably ran into the Mother at the local E Store. I do not think there is sufficient evidence for me to say that he followed her there, but he certainly found himself at a position in the E Store, where the Mother was there after school with the children. They were going in to buy the children an after-school drink or something like that, a normal event for children after school. The Mother was approached by the Father in an aggressive, confrontational way, where he gestured to the Mother that she was injecting something into her arm. The Father was even cajoled by his adult nephew to walk away, and yet he did not do so. He frightened the children and the Mother as well. The Mother, as a victim of family violence, having had the strength to separate from the Father, all of those feelings, fears and anxieties surrounding family violence are brought straight back up into the fore when something like this occurs. From that point onwards, the children refused to see the Father, and on two occasions at the Contact Centre when they were delivered, the time could not take place, due to the children not being assessed to be in a suitable state to be able to participate in the time. COVID-19 also conspired against the time being re-established, as well. At today's date, it is a couple of weeks shy of a year since the Father has seen the children.

11. Notwithstanding all of that, there were some excellent points put by Counsel for the Father. For instance, it is quite clear that after that incident which took place on 1 April 2021, the children were interviewed at school, and said something to the effect of that they did not have a father, which does strike me as quite odd. It is highly suggestive that the children have been influenced by the Mother. I am not saying that she has intentionally done this. The children have been influenced by the event itself, which was squarely at the Father’s feet, but they have also probably been influenced by the anxious reaction that the Mother has had following that event. However, there is an old saying, and that is that “you reap what you sow”.  

12. If you perpetrate family violence against someone, and they develop what lawyers call an “eggshell skull”, or a predisposition to anxiety as it is associated with family violence and violent acts, you do reap what you sow. The Father has to accept that the Mother has anxiety surrounding these issues, and she might be more sensitive than a lot of other people with respect to the prospect of violence being perpetrated against her, and so too the children might have a predisposition to anxiety surrounding violence, because I find that they have been witnesses to violence, and the after effects of that violence.

13. I used to talk to my clients about these issues all the time. I used to draw this analogy for them. Imagine that your two best friends in the world are arguing with each other, and you love both of them, and you have to traverse the hostilities in their relationship because they are your two best friends. Children only ever get two parents. The two of you are the only parents that they will ever have. Imagine how uncomfortable you would be thinking that one of your friends - one of your best friends for whom you care for deeply - was going to hurt your other best friend, or that you are moving between your two best friends' houses knowing that they cannot stand each other and that they say dreadful things about the other.

14. I think that you can well imagine, how difficult and how uncomfortable that, as adults, would make us. Imagine being a child and having no control over the behaviour of the two people in your life who are the most significant to you as a child; the two people in your life who you are entitled to rely upon for support and comfort and love.

15. To multiply those feelings that you might have had with your two best friends by at least 10, if not, 100 fold, and that is what it is like for children to experience this. That is my way of saying it. The psychologists and the social workers who continually appear in this Court tell me that children who have been exposed to parental conflict, and exposed to family violence, have a higher incidence of mental health issues when they get older, they have trouble forming and maintaining relationships as adults, and they have higher levels of anxiety. It is dreadfully, harmful to them. I have also observed and been very concerned about the Father's denial of family violence. He did admit the text messages. He showed some level of remorse in relation to that but it struck as hollow.

16. I have been concerned about the Father’s denials in the face of what is strong evidence that the family violence has occurred. I have also been concerned that the Father has a particular personality style (and I refer, for instance, to the email that he sent to the Independent Children's Lawyer, and his complaints about almost every child welfare authority that he has come into connection with), that he has a strident, assertive, perhaps even bombastic personality style that he seeks to assert with vigour. For instance he told me told me in as many words that when it comes to his children, he will do whatever it takes to assert what are his and the children's rights; but from his perspective.

17. I say that because I think his perspective is a little bit skewed at time, and that there needs to be some work done in relation to that. I think both of the parents exhibit (notwithstanding their ages) a degree of immaturity at times. It is not lost on me that the mother does have a capacity to make some ill-advised choices in relation to subsequent partners, and that is something that she needs to work on. The Mother is going to continue with her family violence counsellor, and I think it is very important that she does that, because from our work in this area, we know that people who have been subjected to family violence can make poor choices due to self-esteem issues that might at least partially arise from being subjected to family violence, if not wholly.

18. I think it is probable that the Mother unwittingly passes her anxieties onto the children, and I think that that is probably, at least, partly why they are saying they do not want to see the Father. There are bridges to be built so that the children are prepared to cross them again as they were prepared to do at the Contact Centre last year, and I hope they do. This is one of the few cases in my judicial career that, at the end of the case, where the evidence has been completely ventilated, that I do not think it is ready for a final decision.

19. I think the children deserve another opportunity to have a relationship with the Father. I can see that they enjoyed their time with him last year. I can see that he has had a fair bit to do with them while the parties were together, and for that year afterwards. I sense that he still lives in their hearts and minds as their dad. For instance, if one refers to the family report, I can see that X was ambivalent about her relationship with the Father. She wants to have a relationship with him, and I suspect that Y does too, but they want it in a way that is predictable and safe and does not impinge on the security of care that they receive from the Mother who, at this point in time, is the centre of their universe, and the only person upon whom they can rely for physical, emotional, and psychological care. In that sense, the Mother’s welfare is imperative to the children's welfare.

1. This case will come back before me because I am prepared to given the children another opportunity to have a proper relationship with the Father. I am prepared to give both of the parties a further opportunity for growth and improvement which will, in turn, benefit the children. Whether the parties are able to make those growths, to make those improvements, to take seriously the opportunity that the Court is giving them today, will be a matter for them. In my view, this is the last chance to make these improvements for these children, because if this does not work, then some hard decisions are going to need to be made.

2. Those hard decisions are hard for the parents, but they have long term detrimental repercussions for the children. The psychologists also come to Court and tell me all the time that children who do not have a meaningful relationship with each of their parents also have emotional risks as they get older and, similarly to the effects of family violence, carry with it risks of mental health issues, and risks of not being able to maintain relationships. There are a whole range of risks that are long term and they are risks that they carry forward into their adult lives. We have a legislative pathway in the Family Law Act 1975 (Cth) and the primary considerations that a judge has to take into account are, firstly, the benefit to the children of having a meaningful relationship with both of their parents, but secondly, the need to protect children from physical or psychological harm, from being exposed to abuse, neglect, or family violence.

3. Those two factors are in stark juxtaposition in this case. For instance, although there are things to be critical of with respect to the Father, I saw glimpses of something more when he gave his evidence. I saw glimpses of a man who loved his children. I saw glimpses of a man with a strong and intelligent personality. I saw, briefly, a dry sense of humour. I saw a man who is close to his family. He still lives with his parents. He is close to his sister. He is capable of great loyalty and great love. His children deserve to get that from their father. He has got a lot to offer these children if we can just get over this big problem.

4. I know that the Mother loves her children, and she does everything for them at the moment. I can see that she will fiercely protect them. I want her to understand that as part of that protection, she needs to continue to engage with her counselling to make herself well, so she is in a position to be able to make the children feel that they can move between their mother and their father without it impacting on her welfare. That is going to be a hard job, given the findings that I have made about what she has experienced. These are not reasons that I would deliver following a full hearing, if I was doing it. I would normally do it in a much more formal way. I have delivered these reasons it in this way because, one, I want the parties to go away with something that they can give the professionals who are going to assist them, and two, I wanted to talk to the parties and speak to the issues as I see them in this case.  

5. There is no doubt that there are parts of what I have said that each of the parties do not agree with, but I urge the parties to take on board that the people who are experienced in these areas may not see it from your perspective. Judges are the people who have been charged by the government to implement the Family Law system and the protection of children in the Commonwealth of Australia, and in the case of the Department of Families, Fairness, and Housing, and the Magistrates Court of the State of Victoria in Victoria. The children are represented by an Independent Children’s Lawyer who is also employed by virtue of legislation and precedent, to protect the interests of children, as is her counsel. That is what they have done in this case.

6. I wish the parties well and I hope things go well for the children. I encourage both of the parties to access the professional supports that are going to be made available to them. I am going to adjourn the case to a date next year. I am going to give it three days, because I think if it does run, it might need that long to recap on what has been happening over the course of 2022. Part of the rationale of this interim adjournment is to maintain the valuable assistance of the Independent Children’s Lawyer who can, to some extent, assist the parties throughout the course of the next almost 12 months.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Stewart.

Associate:

Dated:       28 March 2022