Thornton and Thornton

[2017] FCCA 1974

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORNTON & THORNTON [2017] FCCA 1974

Catchwords:
FAMILY LAW – Application by father for discrete injunctive order that two children aged 8 and 4 years not be brought into contact with the mother’s current partner – father does not pursue “live-with” orders – evidence of mother and partner unchallenged – unacceptable risk considerations.

Legislation:

Family Law Act 1975, ss.60CA, 60CC (2), (b), (3), (f)

Cases cited:
Harridge & Anor [2010] FamCA 445

Applicant: MR THORNTON

Respondent: MS THORNTON

File Number: HBC 783 of 2015

Judgment of: Judge McGuire

Hearing date: 15 August 2017

Date of Last Submission: 15 August 2017

Delivered at: Launceston

Delivered on: 22 August 2017

REPRESENTATION

Counsel for the Applicant: Ms R Brown

Solicitors for the Applicant: Legal Solutions

Counsel for the Respondent: Mr D Lewis

Solicitors for the Respondent: Rae & Partners

ORDERS

1. That upon the Court accepting an undertaking of MS THORNTON (“the mother”) that she not bring the children [X] born 2008 and [Y] born 2013 (“the children”) or either of them into contact with any person she knows or reasonably suspects is or has been using illicit drugs; and

2. That upon the Court accepting the undertaking of MR K that he will not use any illicit drug whilst the children [X] and [Y] or either of them are in the care of the mother and for 24 hours prior to the children or either of them coming into the care of the mother.

3. That the application of the father filed to March 2017 be otherwise dismissed and extant Orders made 23 October 2015 in respect of [X] and [Y] remain in full force and effect.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

HBC 783 of 2015

MR THORNTON

Applicant

And

MS THORNTON

Respondent

REASONS FOR JUDGMENT

Application and Background

1. In this matter the father is the applicant.  By his Initiating application filed to March 2017 he sought orders inter alia that:

   1. That the Family Court of Australia orders dated 23 October, 2015 be discharged.

   2. That the children [X] born 2008 and [Y] born 2013 (“the children”) live with the Father.

   3. That the Mother spend time and communicate with the children as ordered by this honourable Court.

   4. That the Mother be restrained from bringing the children into contact with MR K or any other person that has served a term of imprisonment.

   5. That the Mother pay the Father's costs of and an (sic) incidental to these proceedings.

2. On 23 October 2015 the parties agreed consent orders whereby [X] and [Y] live with the mother with a regime of time-with for the father.  The parties agreed that they share parental responsibility.

3. The mother has been in a relationship with Mr K since about November 2016.  They live together.  They are expecting a child together in October 2017. The mother is 30 years of age.  She has an older child, [T], who is aged 12 years and lives with her.  Mr K is 20 years old and has recently been released from (omitted) prison.

4. On being advised that the mother was in a relationship with Mr K, the father, on or about 26 December 2016, withheld the children.

5. By consent on 15 March 2017 I ordered in the interim that the mother be restrained from bringing [X] and [Y] into contact with Mr K.  At that time Mr K was serving a term of imprisonment.  The children were returned to live primarily with the mother.

6. After further interim hearing on 30 June 2017 the injunctive order was 'suspended' and replaced by the following order:

   That until further Order the mother Ms Thornton be and is hereby restrained from the following:

   (a)Leaving the children [X] born 2008 and [Y] born 2013 (“the children”) or either of them in the unaccompanied care of MR K; and

   (b)Allowing or permitting MR K or any other person having direct or indirect contact with the children or either of them if the mother reasonably believes that MR K or any other person is using or under the influence of any illicit drug.

7. On the 30 June 2017 the matter was allocated a trial of half day duration to commence 15 August, 2017.  The Court was advised on 30 June that the father no longer pursued an application for the children to live with him but prosecuted only order 4 of his application as set out above being that the mother be restrained from bringing children into contact with Mr K or any other person that has served a term of imprisonment.

8. When the matter came on for trial on 15 August, 2017 the father’s application was again amended whereby he sought only the discrete order that:

   The mother be restrained from bringing the children into contact with Mr K. 

Evidence

1. The father relies on his affidavit sworn 28 February 2017 filed together with his Initiating application where he deposes at [12) and [15) the following:

   12.On 7 December, 2016, Ms Thornton contacted me to left (sic) me know that she had a new boyfriend named Mr K and that she wanted to introduce the children to him.  She informed me that he was 19 years of age and had spent time in (omitted) Detention Centre.  I expressed immediate concern and asked what he had been in (omitted) for.  Ms Thornton would not tell me.  I then asked if he had spent time in (omitted) prison, which Ms Thornton denied.

   15.On 26 December, 2017, Ms Thornton arrived to pick up the children during the usual hand over time.  Her new boyfriend Mr K was in the car.  I refused Ms Thornton permission to take the children.  Ms Thornton eventually left my property without taking [Y] and [X].  She then proceeded to tell me that her and Mr K were having a baby.

2. Mr Thornton adduced evidence in documents by subpoena from the following:

   a)(omitted) Hospital;

   b)Northern Prosecution services

   c)Anglicare Tasmania;

   d)(omitted) prison; and

   e)Community Mental Health Services.

3. The father’s case is that Mr K presents an unacceptable risk to his children by reason of his history of criminal tendencies and drug use. Further he argues that the mother is 'under the influence' of Mr K such that she could not be relied upon to act protectively for the children in the face of Mr K’s behaviour.  The alleged risks are not more particularised, but I am prepared to infer that Mr Thornton fears risk to his children physically and emotionally.

4. Counsel for the mother did not choose to cross-examine Mr Thornton.

5. The mother provides a trial affidavit sworn 14 June 2017.  She deposes at [36-43] as follows:

   36.It appears that Mr Thornton's main concern, and the reason he retained the children is due to the fact that I am in a relationship with Mr K (“Mr K”), who has spent time in prison.

   37.My second relationship is with Mr K.  I commenced a relationship with Mr K on or about 20 November 2016.

   38.I telephoned Mr Thornton on 7 December, 2016 to advise him that I had entered into a new relationship with Mr K.  At that stage I did not say that I wanted to introduce him to the children and did not say anything except to advise Mr K lived in Hobart.

   39.Following a telephone conversation, Mr Thornton contacted Mr S (to ask about Mr K, and Mr S told him that Mr K had spent time in (omitted) Detention Centre. Subsequently, Mr Thornton spoke to me again and I confirmed that I was aware that Mr K had spent some time in (omitted) Detention Centre, that I did not know what it was for and that he had recently served time in (omitted) prison for driving offences and evading police.

   40.    I remain in a relationship with Mr K.

   41.On about 24 February, 2016 Mr K was remanded in custody for a breach of his parole conditions. Those conditions provided a curfew and for Mr K to live with his mother.  However, he had stayed at my home.

   42.That matter proceeded through the Court, and it is my understanding that Mr K could serve the rest of his sentence, or be released with more conditions. He is currently serving the rest of his sentence at (omitted) prison, and has had his sentence reduced by two months due to good behaviour.  He is due to be released on 23 July, 2017.

   43.Although Mr K has spent time in prison, I do not believe he poses a risk of any sort to the children.

6. In respect of Mr K and the children, the mother deposes at [45-47]:

   45.Mr K gets on very well with the children.  He plays with them and always gets involved in what we are doing.  He comes to the park and goes on outings with us (sic) reads the children books.  They genuinely enjoy being around him.

   46.During the time Mr K spent around the children I have not seen any behaviour from him that causes me any concern.

   47.I would not allow Mr K to move in or be around the children if I believed he was any sort of risk to them.  My actions and ceasing my relationship with Mr S (a former partner) as soon as any family violence arose is evidence of how seriously I take the children’s safety and well-being well-being and I would be prepared to cease my relationship with Mr K if he did pose any risk to the children.

7. The mother also adduced evidence from Mr K whose affidavit was sworn 27 June 2017.  He deposes at [7-14]:

   7.I admit that I do have a criminal history and have spent time in both (omitted) Detention Centre and (omitted) prison complex.

   8.Between the ages of 14 and 18 I estimate that I spent time in (omitted) Detention Centre on about 13 occasions, totalling approximately 2.5 years.  The charges related to motor vehicle stealing, burglary, drugs charges an armed robbery.

   9.I spent about eight months in custody in relation to that charge of armed robbery.  However, I was later cleared of the armed robbery charge as the police obtained CCTV footage that proved that it was not me.

   10.I have also spent approximately 10 months in (omitted) prison complex. In 2016 I was charged with dangerous driving and evading police.  The charges for dangerous driving were due to speeding.  There were not any accidents involved.  As I was disqualified from driving at the time, I regrettably made the decision to avoid police because I knew that I would be charged.

   11.I was released from (omitted) prison about August 2016, on a Drug Treatment Assessment Order, which was subject to conditions including a curfew and requiring me to stay at my mother's home in (omitted).

   12.    I was charged with a breach as I stayed at Ms Thornton’s home.

   13.I was remanded in custody on about 23 February, 2017 and was ordered to serve the rest of my sentence.

   14.I have had my sentence reduced by, I think about 10 days, due to my good behaviour while I have been in custody.

8. At [16-18) Mr K deposes:

   16.I do regret my past, however, I have made many changes to my life including giving up illicit drugs altogether.  I have not used any illicit drug since approximately October 2016, prior to me meeting Ms Thornton.

   17.I do not have any prior convictions or matters relating to harm of persons or family violence.

   18.I would not do anything to hurt, injure or otherwise put at risk anyone, including Ms Thornton and her children.

9. Mr K at [19-20] deposes that he has a daughter aged five years and that she “regularly spends time with me every second weekend from Friday until Sunday.”  There is no evidence put before me as to any restrictions on Mr K’s time with his daughter.

10. Surprisingly, Counsel for the father did not choose to cross-examine and hence directly challenge Mr K’s evidence.  Similarly, the father's Counsel did not choose to cross-examine the mother on her evidence set out above.

11. Both the mother and Mr K were at Court and expressed their preparedness to give undertakings to the Court, in relation to Mr K to his drug use and, in respect of Ms Thornton, that she would not bring the children into contact with Mr K or any other person she knows or reasonably suspects had been using drugs.

12. The father subpoenaed Mr K’s prior convictions.  They are extensive.  With the exception of one conviction for common assault in 2015, they confirm Mr K’s evidence that he has no record for offences of violence.  His convictions are in the main, driving and dishonesty offences together with breaches of Court orders involving driving disqualifications. 

13. The father subpoenaed Mr K’s file from (omitted) prison.  They note an incident of him attempting to smuggle tobacco into prison and most likely from a visit by the mother.  His prison record is otherwise unremarkable.

14. The father subpoenaed the (omitted) Hospital files in respect of the mother and Mr K.  Those records do suggest that Mr K to carry hepatitis C but are otherwise unremarkable save and except his presentation at the hospital on 19 January 2017 where there was a suggestion (but no apparent substantiation) that he was suffering a psychotic episode. Those records do suggest, however, a supportive relationship with the mother who attended at the hospital with him.  Notably, those records also suggest that Mr K has and receives prescribed medications.

15. The father subpoenaed documents from Anglicare Tasmania in respect of the mother's employment at the (omitted) Detention Centre.  Those records disclose concerns/allegations as to Mr K’s use of amphetamines about 19 January 2017 and consistent with the hospital records.  There was also reference to the Child Safety department's interest in [X] and [Y] although, notably, I do not have before me any evidence of departmental interventions.  Further, memoranda of December 2016 suggest that the relationship between Mr K and the mother may have begun whilst he was an inmate of the (omitted) Detention Centre and she was an employee there.  If so, then this raises questions only as to the professional judgement of the mother.

16. The father subpoenaed documents from Community Mental Health Service Tasmania in respect of Mr K.  These documents do suggest amphetamine use as of January 2017 and contradict Mr K’s evidence that he has not used amphetamines since October 2016.  Those records also show a supportive relationship between Mr K the mother.  

Relevant Law

1. The matter before me comes within the umbrella of a parenting order although only discretely in respect of the injunctive orders sought by the father. As such, I must have the children’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (‘the Act’). I determine the children’s best interests by referencing the probative evidence before me in the parties proposals to the numerous considerations set out in s60CC(2) and (3) of the Act. Most relevant here are the considerations at s60CC(2)(b) in respect of making orders which serve to protect children from family violence or abuse and attend to their safety and welfare and, secondly, s60CC(3)(f) being as to the capacity of the mother to attend to the children’s physical and emotional needs. The remaining considerations in the Act effectively become superfluous due to the nature of the orders sought now by the father and the fact that he has not prosecuted an application for the children to live with him.

2. By definition the concept of 'unacceptable risk' is a prospective one looking into the future.  It can be said that there will always be “risks” to a child of harm by reason of the vagaries of life.  As such, the ‘certainty' of protection of his children urged by the father is an impossibility.  Rather, the Court must look at the nature of the risk on a case-by-case basis and, if necessary, apply prohibition or conditions on a relationship between a child and parent in order to remove or minimise the risk.  Consequently, the distinction between 'unacceptable risk' and 'acceptable risk’ will often be a fine one.  Ultimately, the Court should act so far as it is able to provide reasonable protection if necessary so as to attend to safety concerns and also to give the other parent objective confidence and trust that the children will be cared for and safe within ordinary community expectations.

3. Significantly, the jurisdiction of this Court is not a punitive one. It is not a criminal Court. Family Courts do not punish the child for the sins of the parents or others. Rather, it is the interests of the child which ground the consideration always balancing the 'twin pillars' of s60CC(2) where firstly, the Court must make orders which benefit children having successful and meaningful relationships with both of their parents whilst, secondly, acting to protect to the children where necessary from harm or abuse.

4. Murphy J in Harridge & Anor[1] offers a helpful enquiry list for trial judges in dealing with issues of unacceptable risk and as follows:

   1.  What harmful outcome is potentially present in this situation?

   2.  What is the probability of this outcome coming about?

   3. What risks are probable in this situation in the short, medium and long term?

   4. What are the factors that could increase or decrease the risk that is probable?

   5. What measures are available whose deployment would mitigate the risks that are probable?

   [1] [2010] FamCA 445

Consideration and Findings

1. There are some unusual aspects to this matter in its context and in its prosecution.  Firstly, the father no longer prosecutes a case for his children to live with him.  He does not, however, retreat from his asserted concerns.  Clearly his application was motivated, at least in large part, by the mother entering and continuing a relationship with Mr K.  He now again delegates that primary care role to the mother knowing that she pursues that relationship.  I must infer, therefore, that he generally trusts the mother to have the ability to attend to his children's needs and including their safety.

2. Secondly, Counsel for the father did not cross-examine or challenge the evidence of either the mother or Mr K as set out in detail above.  Both the mother and Mr K prima facie address the concerns set out by the father.  I consider that I must take such unchallenged evidence at face value unless obviously a nonsense or unless otherwise contradicted.  In this respect the one concern I have is with the veracity of Mr K's evidence that he has not used amphetamines since October 2016 when there is evidence in the subpoenaed documents suggesting strongly a use of drugs in about January or February 2017.

3. I accept the balanced submissions of Counsel for the mother that, firstly, the father's concerns are reasonable and understandable in any good parent given the background of Mr K but, secondly, that the father's concerns of risk suffer through lack of particularisation as to current risk.

4. I maintain some difficulty in rationalising the father's position that he delegates care of the children to the mother but seeks the imposition of a condition that would effectively prevent her as an adult pursuing a relationship with another adult.

5. I place some weight upon the following in my determination:

   a)The relationship between the mother and Mr K has now endured for some time and Mr K serving a term of imprisonment (for offences committed prior to the commencement of that relationship);

   b)There is no complaint or alleged breach since my interim injunctive orders of 30 June 2017;

   c)There is no contemporaneous evidence of complaint or concern in respect of Ms Thornton care of the children or Mr K’s behaviour including no evidence of any Child Safety department intervention or concern.;

   d)That while it is trite to say that my paramount consideration is the best interests of [X] and [Y], that is not my only consideration.  I must consider that the impact of the orders sought by the father would be to prevent these children’s’ mother, and delegated primary carer, from pursuing an adult relationship of her choice;

   e)That there are many instruments of protection available to Courts  to impose on a parent’s relationship with a child other than the strict prohibition order sought by Mr Thornton and in this respect I note again that Ms Thornton and Mr K are both prepared to give undertakings in the face of the Court; and

   f)The mother’s unchallenged evidence that she has previously acted protectively of her children in removing them and herself from a family violence situation and relationship.

Conclusion

1. Whilst I respect the father's concerns for his children, he himself shows some sense of real confidence in the mother’s protective and caring abilities if only by his failure to prosecute his application for primary care of [X] and [Y].

2. I do, however, share his concerns in respect of the mother's partner.  Mr K is just 20 years of age.  He has an unenviable criminal record of anti-social behaviour.  He has served detention in both child and adult prisons.  I am comfortably satisfied that he has previously been a user of amphetamines.

3. I do, however, have the unchallenged evidence of the mother as to her vigilance in respect of her children.  I have no particularised current complaint by the father although I do accept the practical difficulties in obtaining such evidence and do not therefore diminish the historical evidence or the father's concerns.

4. I also have the evidence of Mr K that he has desisted from criminal behaviour and drug taking.  That evidence is unchallenged.  Further, and despite me being sympathetic to the father's concerns, the majority of Mr K’s criminal record is not for matters that I would ordinarily consider render him a person to be prohibited from being in the company of a child.

5. Again, I understand and respect that the father asked for “certainty” in the protection of his children.  Nevertheless, in a pragmatic world such “certainty” as to a child's safety can never be offered or expected.  The best that a Court can do is to make orders on balance within the particular circumstances of a case which will serve to protect the children.

6. On the balance of all considerations and noting the children’s young ages and the background of Mr K, I am satisfied that the children would be protected should the Court receive appropriate undertakings from the mother and Mr K in respect of protection and drug use provided that such undertakings will only be accepted if the Court be satisfied that both the mother and Mr K understand the ramifications of breach of undertakings that, after all, are required to protect children who are of ages where they could not reasonably be expected to self-protect and hence such ramifications might extend to the children being removed from the mother’s care and/or substantial penalty imposed on the party guilty of the breach.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  22 August 2017