T & N
[2003] FamCA 1129
•4 November 2003
[2003] FamCA 1129
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY No. SY5747 of 2001
BETWEEN:
T
Father
- and -
N
Mother
REASONS FOR JUDGMENT
BEFORE: The Honourable Justice Moore
HEARD: 4 November 2003
JUDGMENT: 4 November 2003
APPEARANCES: Mr Cook, instructed by T.H. Drake & Associates, Solicitors, DX 20804 The Entrance, appeared for the applicant/father.
Mr Causer, instructed by McKenzie Cox, Solicitors, DX 7714 Lismore, appeared for the respondent/mother.
Mr Anderson, instructed by Slade Manwaring, Solicitors, DX 248 Sydney appeared for the children’s representative
Proceedings
At stake in these proceedings have been the future care arrangements for two young children: TN, 4 ½ years, born 27 February 1999 and JT, 3 years, born 24 September 2000.
Their father, Mr T, 23, instituted the proceedings initially in the Local Court at Wyong on 26 June 2001. At the time the whereabouts of their mother, Ms N, 33, and the two children was unknown. That was because during the Easter period while Mr T was absent at work and without forewarning him, Ms N left the caravan they lived in at Toukley, taking with her the children who were then aged 2 years and 7 months respectively. With the assistance of her family she has since secreted her whereabouts from him, though it is known she lives in south-east Queensland. Her departure from the relationship and her undisclosed location, on her case, relates to the history of her experiences of Mr T’s behaviour; in particular, her fear of him as a result of his habitual use of marijuana, his violence towards her, and his violence towards JT following his birth.
Mr T sought at the time a location order and orders for contact with the children to occur each alternate weekend, a block period of four weeks upon notification of his intention to exercise it, telephone contact each night, and at other time to be agreed. He also sought an order restraining the mother from relocating with the children unless first notifying him in writing of her intended address.
The response filed on Ms N’s behalf sought the dismissal of his application, her address not be disclosed to him, and there be no orders for contact between him and the children. At the same time she filed a Notice of Child Abuse in the form prescribed by the Rules of Court giving particulars of the abuse and risk of abuse to the children.
The proceedings were transferred from the Local Court to this Court in September 2001 and a representative for the children was appointed by order made 13 December 2001.
In December 2002 the Legal Aid Commission conducted a conference and an interim agreement about contact was reached, with the result that interim consent orders were made on 28 January 2003. They provided for the father to have contact at named Contact Centres on certain dates, contact to be supervised until 24 May when it would become unsupervised and entailed day time contact on specified dates from 10am to 4pm.
The first of the scheduled supervised contact occurred on 8 February 2003 and proceeded to unsupervised contact in late May. In late June Ms N instructed her solicitors to suspend the contact because of her view of the unsettling effect it was having on the children.
Refusal to make consent orders
The matter was set for hearing over four days and came before me this morning. The parties had filed affidavits of evidence in chief and an outline of their cases. Mr T relied upon affidavits he swore on 17 May 2002, 27 August 2002, and 8 October 2003. He also relied upon an affidavit of his half-sister, Ms RT, sworn 27 August 2002. Ms N, on the other hand, relied upon her affidavit sworn 8 October 2003, the affidavit of her mother sworn 8 October 2003, the affidavit of Mr MH sworn 2 October 2002, the affidavit of Dr H, medical practitioner, sworn 1 July 2002 and the affidavit of Dr D, paediatrician, sworn 15 August 2002.
Counsel for the parties and for the child representative informed me when the matter was called that it was close to resolution. At the same time, counsel for Mr T foreshadowed an amendment to his application, the intent being to seek orders that would provide for contact with the children on two consecutive days once per month for 12 months (the first 6 months to be supervised and then unsupervised), thereafter for one half of the school holiday periods, and for telephone contact once per week.
10. Some short time was allowed for counsel to conclude their discussions. I was subsequently informed the matter had been settled on terms that would involve the children in arrangements to this effect:
They would live with their mother;
Their mother would have the sole responsibility for making decisions about their long term and day to day care, welfare and development;
They would have contact with their father:
·Supervised at the Robina Children’s Contact Centre for two consecutive days per month for a period of 6 months;
·Supervised for two consecutive days from 10am to 4pm on the second weekend of each month from 17 April 2004 to the end of 2005/06 (when JT is due to start school);
·Upon both children starting school, for half of each school holiday period.
Telephone contact to be provided each Wednesday from 6.30 to 7pm with the father to provide a card for the mother to use;
Various undertakings would be offered by Mr T to this effect:
·He would not consume marijuana for 24 hours prior to any contact;
·He would not consume alcohol for 24 hours prior to any contact;
·He would not use physical discipline on the children;
·He would abide by any service agreement with the contact centre;
·He would attend an anger management course;
·He would not drive the children in a motor vehicle without a licence;
·He would provide in advance details of where the children would be accommodated and the like when in his care.
11. I refused to make these orders, though they were offered with the consent of the parents. I stated my reasons then and repeat and elaborate upon them here.
Reasons for refusal
12. The affidavit evidence revealed a number of disputed facts on issues of significance. No findings could be made on those disputes without any of the evidence having been tested and I made it clear my comments were not to be interpreted as representing concluded views on disputed facts. To the contrary, long experience teaches that findings must abide the close of the evidence when everything is usually shown in quite a different light.
13. That said, the evidence it was now proposed not to test established on first appearance a risk to these children if those orders were made, and it was my opinion the magnitude of that risk was unacceptable (see High Court decision of M v M (1988) FLC 91-979). That flowed from the unchallenged evidence of Ms N about Mr T’s conduct and included, in some instances, his own concessions. I shall summarise that shortly.
14. It is the statutory responsibility of a judge of this Court, pursuant to Part VII of the Family Law Act 1975, to make orders consistent with the interests of children. On what I had been presented, I could not say unsupervised contact between the children and Mr T would be consistent with their best interests. I therefore declined to give the imprimatur of this Court to the arrangements by making orders to that effect. The most I could see as consistent with my responsibilities was to accept parental consent to supervised contact only.
15. At the same time, I observed that parents are quite free to make such care arrangements as they choose, subject to State intervention on child protection issues, and notwithstanding the terms of any order of this Court Ms N and Mr T would be free to go away and agree informally about unsupervised arrangements. But I informed counsel that if formal orders were limited to supervised contact, I would also consider it my responsibility to refer this matter to the relevant Departments in both Queensland (where Ms N lives) and New South Wales (where Mr T lives) so as to alert them to the prospect there may be an informal arrangement that would see these children in the unsupervised care of Mr T.
16. After some further adjournment to consider their position, counsel for the parties and counsel for the child representative presented orders limited to supervised contact. I made those orders by consent. The terms are set out later. Whether there is some other informal agreement, I do not know, but the matter will be referred as I said.
Background
17. The parties relationship began in May 1998. From that time until Ms N left with the children in April 2001, they led an unsettled life with many changes of residence and their relationship was interrupted by several separations, allegedly precipitated by violent and abusive conduct by Mr T towards Ms N and also violent and abusive behaviour by him towards JT from shortly after his birth.
18. The first separation occurred in August 1998, only some 3 months after they started living together, and followed an assault by Mr T when Ms N was pregnant with TN. She sought police intervention and an AVO at the time, but she did not proceed with it. She returned to the relationship.
19. In his evidence of this occasion, Mr T admitted he struck her and expressed remorse and regret for slapping her, but nonetheless he alleged she hit him and threw things at him on a number of occasions.
20. In the latter half of 1999 there were a number of episodes:
Ms N alleged that some months after TN’s birth Mr T’s behaviour deteriorated again and he began pushing and shoving her. On one occasion he punched her in the face and gave her a black eye. She visited her mother who encouraged her to seek police intervention and, as a result, an AVO was made and Mr T was charged with assault. He pleaded guilty and was placed on a 12 month good behaviour bond. It is alleged he breached the AVO by coming to her parents’ home and banging on the front door and there were later breaches reported to the police.
They reconciled, but again it was alleged his behaviour deteriorated and he began to assault her. She described an episode of violence when he chased her outside while she was carrying their daughter and kicked her in the legs until she fell to the ground. He took the child from her and kicked her on the ground and punched her in the face, head and shoulders. There was further trouble at the tavern the next day when an argument developed. His conduct towards her on this occasion involved flicking a lighted cigarette at her, burning her on the chest, threats she would “cop it” when she got home, and he grabbed TN, threw the child roughly into the car seat without restraining her and took off at high speed and squealing tyres. The police were called and the child returned to her mother several hours later, extremely distressed, screaming and hungry. She was being breastfed at the time and it was said she had not been fed for about five hours. Mr T was charged with assault and a search of his premises led to further charges related to cultivation of marijuana, stolen goods, and break and enter. At the same time, an interim apprehended violence order was taken out against him. He was held in custody for a time and Ms N and their daughter stayed elsewhere.
When the matter later came before the Local Court, Mr T was represented by a barrister, Mr F. As Ms N related it, it was agreed after discussions that Mr T would go to counselling to deal with his anger problem and the barrister, she alleged, told her not to turn up to Court and the charges would be dismissed. She complied and the assault charge was dismissed, as was the application for the AVO.
On one version of the events of the first day, Mr T said he did not kick or punch her and nor was the child screaming. At another point, when he raised this episode again, he conceded he pushed her to the ground, but put the responsibility for what occurred on Ms N. On his evidence about the tavern incident, he conceded he took TN, but said he did not throw her in the back seat or drive off at high speed; he drove around the corner and put her in a baby capsule and later fed her some egg custard. He confirmed he pleaded guilty to having cultivated marijuana, but this was for personal use, and he pleaded guilty to having goods in custody, but this was the fault and responsibility of others. He said the other charges were dismissed.
21. Ms N further alleged that shortly after JT’s birth in September 2000 the violence and abuse from Mr T began to escalate. When he was angry he assaulted her by punching her, on occasions on the face, and he began holding her on the floor and biting her on the arms, face, back, and legs. On one occasion he bit her on the scalp and drew blood. She said she still has bite marks on her forearms. She alleged he also began biting JT. He bit the child regularly on the fingers, ears and face when he cried. She said when he did this she would hit Mr T to deflect his attention to her. They had a visit from the Department of Community Services at one time, but she could not talk to them because he was there.
22. For his part, Mr T denied ever deliberately biting Ms N though he described one occasion she raised her head suddenly and hit him in the mouth. He conceded in his first affidavit he had ‘nibbled’ JT in play but had never deliberately hurt him. However, in his second affidavit he returned to the allegation of biting the child and said on one occasion he ‘accidentally bit JT on the ear and will never forgive himself’. He went on to say he was ‘so stressed and upset he just did not know what he was doing but he realised after he had done it.’ He said he would never do a similar act again, he has learnt from his mistakes.
23. For some months prior to her departure in April 2001, Ms N alleged Mr T kept her a virtual prisoner by not allowing her to leave the home by herself or, if she did leave, he would allow her to take only one of the two children with her. She lived in fear for her safety and that of the children. Some time before she left Mr T bit JT on the cheek so severely he was left with a bite mark and bruising to his cheek. She realised she had to get away from him for JT’s safety. She took the opportunity to leave while he was at work over Easter. To do so, she enlisted the aid of her family, from whom she had severed connection at his insistence, and arranged to meet her mother with the children’s and her basic belongings. She has since been supported and cared for by family and now lives with her parents in Queensland.
24. Mr T refuted any suggestion he held her prisoner, pointing to the practical opportunities she had to leave when he was at work. He further rejected the proposition that she had any reason to fear for her safety or the safety of the children.
25. Ms N alleged that from the time she met Mr T he smoked marijuana constantly and did so throughout the whole of their relationship. His marijuana habit was a drain on their finances and this led to numerous arguments between them. His behaviour involved sudden mood change and if he did not have marijuana he became agitated, nasty and spiteful, argumentative and physically violent towards her. She said his behaviour was cyclical in that he would go for a few days when he was congenial in his attitude provided he had marijuana to smoke. When it ran out and he was unable to procure more, he would become nasty and physically aggressive towards her.
26. Mr T denied any addiction to marijuana and denied that he smoked it constantly although he admitted growing five small plants for his own consumption. However, it has to be said that Ms N’s version of his marijuana use is supported by a copy of his diary where daily consumption of ‘cones’ is recorded.
27. On 19 April 2001, just after she left, Ms N consulted Dr H at Yagoona. In his report he said Ms N had bruises on both of her hands, she complained of loss of sensation on her right ring finger and she had a swollen left little finger. She also had bite marks on her forehead. JT had some bruises on his left cheek and a small scar on his right ear. TN had no physical injury but seemed distressed. Whether Dr H reported the matter to the Department, I could not say.
28. On 2 July 2001 Ms N took TN to see a paediatrician, Dr D, the referral being for episodes of syncope (unconsciousness). He related the mother’s report that this had occurred regularly since the age of 1 year and almost all episodes were precipitated by prolonged crying then a fairly classical breath holding attack with the more prolonged episodes resulting in minor jerking movements. The mother related sleep disturbance by episodes of screaming. He said the child’s physical examination was normal and within the relatively brief time in the office she did not display any florid emotional abnormalities. But he was unable to say whether the breath holding attacks were related to stress or a response to certain stimuli and would improve over time. Nor was he able to say whether the night screaming episodes were related to emotional stress or related to aging and maturation of the central nervous system.
Contact
29. I referred earlier to the contact orders made in January 2003 following the Legal Aid conference and the general course taken by supervised then unsupervised contact before it came to an end. In her evidence Ms N alleged the behaviour of both children deteriorated, they became unsettled and non-compliant, clingy and their sleep was disturbed by episodes of screaming. TN objected to going on contact. Ms N was asked to collect JT from day care on several occasions because of unsettled and disturbed behaviour, including biting and hitting another child. Since contact ceased, it was Ms N’s case that the children’s behaviour has improved and they are now at the point of sleeping through the night.
30. She further alleged breaches by Mr T of the agreement with the Contact Centre; for example, she found a phone number of on piece of paper in Mr T’s handwriting amongst the children’s things, he failed to advise he would not be turning up on another occasion, and he was abusive to the co-ordinator and staff by refusing to put JT down when told it was time to go, saying ‘you can’t tell me what to do, they’re my children.’
31. Ms N also alleged that when he had unsupervised contact, the children were returned to the Centre inadequately dressed for the weather, no regard had been paid to her request they not swim because of colds, and they were returned in a vehicle without being in proper safety restraints.
Views expressed by the parents
32. As set out in his affidavits, Mr T’s version of the contact visits entailed the propositions that the children were pleased to see him, they had enjoyed the visits immensely and, while there have been times they have misbehaved, that is to be expected he said. He maintained he is well able to look after both children. He regrets they did see incidents of violence between himself and their mother, their fights were often because of finances, and he regrets the three occasions he slapped her and pushed her to the ground. He said he has never punched her with a closed fist, nor hurt either of the children in any way. He spoke of the children’s right to see him and said that should not be interfered with. All he wants is a relationship with the children and their earlier close relationship restored. He would like to see the children attend proper schools and grow up with respect for themselves and others and he believes it is in the interests of the children they are aware they do have a father who is interested in them. He believes he is able to provide a caring and loving situation for them.
33. For Ms N’s part, in her affidavit she said she recognises the children’s right to have a relationship with their father but the children are young and have not had much contact with him. In her affidavit she asked that the children have ongoing supervised contact to minimise the disruption that unsupervised contact created for them. She maintained she is extremely fearful that if Mr T finds out where she lives or if orders are made for contact he will kidnap the children and will continually harass her. She said Mr T has no respect for the law and had frequently said to her when they were together ‘the police don’t worry me.’
Discussion
34. If the allegations against Mr T were established, they strongly indicate him to be a violent and abusive person who represents a high risk of harm to the well-being of his former partner and a high risk of harm to his children.
35. It hardly needs to be said that a parent who would bite a baby - as it was alleged and he virtually conceded he did - represents a danger to that child’s safety and well-being. As far as I am concerned, an undertaking not to ‘discipline’ the children is insufficient to satisfy me that such aggressive violence has been properly addressed. Nor is it sufficient even when taken in combination with an undertaking to attend an anger management course. At the very least, one would expect the anger management course to have been completed and a benefit to the participant demonstrated, not merely future attendance at a number of sessions with a certificate at the end. Much more to the point, such conduct against a baby strikes me as being far beyond anger management courses; a more profound and therapeutic approach is surely required.
36. It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations. (see “Attachment, Trauma, and Domestic Violence – Implications for Child Custody” – Alicia F Lieberman, PhD and Patricia Van Horn, PhD; “Children and Domestic Violence: A Review”, Dora Black and Martin Newman.) One could go on to the impact upon their ability to form attachments, and so on.
37. Added to these concerns was the further issue of Mr T’s marijuana use. The diary annexed to the affidavit of Ms N’s mother, with its almost daily reference to consumption of ‘cones’, threw his version of his usage into doubt. If he cannot be alert and free from substance abuse, he cannot properly care for young children who would rely upon him to have their needs met. Unsupervised contact would be completely contra-indicated in the circumstances reflected in those diary notes. Mr T would have to demonstrate, by some objective measure such as controlled pathology analysis, that he is no longer abusing drugs before contact on that basis could even be contemplated. I regard an undertaking to refrain from marijuana or alcohol use 24 hours prior to having unsupervised contact as completely inadequate to address the risk for these children of coming to harm in his care.
38. It is crucial to the well being of these children that they be settled and free from trauma associated with violence, aggression and threats. Of course it would be consistent with their interests to have a relationship with their father and spend time in his care developing bonds. But that presupposes he has a proper attitude to his responsibilities as a parent and he has a capacity to meet the children’s psychological and emotional needs. On the evidence presented, albeit untested, I could not be satisfied Mr T has either.
39. In rejecting the proposed consent order, I acknowledge that parents’ consent to arrangements about their children is a powerful, and in most cases a deciding, factor. I cannot say why Ms N gave her consent to an arrangement involving unsupervised contact to be followed by block periods. She was legally represented by barrister and solicitor and, of course, I could not know what instructions they had nor what advice they gave her. Whatever the case, her consent does not displace the obligation of this Court to make orders that are judged to be in the best interests of children.
40. It remains to say I find it of concern that the child representative, through counsel, would provide support for the proposed consent orders in the face of behaviour, alleged and conceded, that had the potential to place these children in serious jeopardy in that event. Given the nature and gravity of the risks to them, the assortment of undertakings on offer from Mr T could have provided no protection to the children before the event. With no demonstrated track record for the major change to habits and attitude so obviously necessary, those proposed orders were completely unsuited to the protection of these children from harm.
41. For those reasons, I declined to make the consent orders initially proposed but did make orders by consent for supervised contact only. They are in these terms:
That orders be made in terms of the document titled “Short Minutes of Consent Orders”, signed by the parties, their legal representatives and the children’s representative filed herein as set out hereunder:-
“1.That the children TN, born 27 February 1999 and JT born 24 September 2000 (“the children”) reside with the mother.
2.That the mother have the sole responsibility for making decisions regarding the long term and day to day care, welfare and development of the children.
3. That the father shall have contact with the children as follows:
3.1The father shall attend Robina Children’s Contact Centre from 10 am to 4 pm on
21 and 22 November 2003
20 and 21 December 2003
17 and 18 January 2004
14 and 15 February 2004
13 and 14 March 2004and have supervised contact with the children in accordance with the Children’s Contact Service Supervised Contact: Service Agreement and subject to the father agreeing to abide by such Service Agreement and any reasonable directions of the Robina Children’s Contact Centre staff.
3.2Thereafter contact shall occur on the 3rd weekend of every month commencing at 10am and concluding at 4pm each day of that weekend and shall occur at the Robina Children’s Contact Centre and shall be supervised contact in accordance with the Children’s Contact Service Supervised Contact Service Agreement and subject to the father agreeing to abide by such Service Agreement and any reasonable direction of the Robina Children’s Contact Centre staff.
3.3At such other times as the parties may agree subject to the same conditions of supervision in paragraph 3.2.
3.4By telephone each Wednesday between the hours of 6.30pm and 7pm provided that the father provides to the mother’s solicitor a phonecard which is prepaid and can be utilised to ring the father.
4.That for the purposes of contact in paragraph 3 the times and dates are subject to the availability of the Supervised Contact Service on those dates and at those times and in the event that the times and dates are unavailable then contact is to occur at the first available opportunity after the unavailable dates.
5.The father shall not consume any non-prescription drug including but not limited to marijuana and alcohol 24 hrs prior to or during contact periods.
6. The father shall not physically discipline the children.
7.The father shall undertake an Anger Management Course within 6 months of the date of these orders and provide to the mother’s solicitor evidence of his satisfactory completion of such course.
8.In the event that contact at the Robina Children’s Contact Centre is cancelled by a party to these proceedings then that party shall bear the cost of the arranged contact at the Centre.
9.Pursuant to s65DA(2), the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.”
IT IS FURTHER ORDERED:-
In relation to documents produced to the Court on subpoena the solicitor for the party who caused the subpoena to issue uplift those documents no later than seven days from this day and forthwith take all steps necessary to return the documents to the person or corporation entitled to them.
The matter is to be removed from the list of cases awaiting final hearing.
I certify that the previous 41 paragraphs are a true copy of the judgment delivered by the Honourable Justice Moore.
Associate:
Catchwords:
Contact proceedings – children now aged 4 and 2, but aged 2 and 7 months at separation –whereabouts of mother and children not revealed since separation in April 2001.
Father’s application sought weekend and block periods of contact - mother’s application sought orders for no contact –– parties represented by counsel and children represented by counsel – resolved by tender of consent orders involving supervised contact for a period followed by unsupervised contact and later block periods accompanied by various undertakings of the father.
Refusal to accept consent orders for unsupervised contact – evidence, though untested, revealed a history of severe violence and abuse by father of mother, physical abuse of younger child and history of marijuana use – undertakings offered by father wholly inadequate to address the risk of harm to the children from unsupervised contact – after further negotiation orders made by consent for supervised contact only.
Concern expressed as to the role of the child representative in approving the initially proposed consent orders.
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