TOOHEY & TOOHEY

[2016] FamCA 15

FAMILY COURT OF AUSTRALIA

TOOHEY & TOOHEY [2016] FamCA 15

FAMILY LAW – CHILDREN – Interim parenting – Hearing undefended – Best interests of the child – Parental Responsibility – With whom the child lives – With whom the child spends time with – Where previous interim parenting orders by consent – Where need to protect the children from harm – Where risk of harm from the father’s behaviour – Previous orders discharged – Mother to have sole parental responsibility and children to live with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Ms Toohey

RESPONDENT: Mr Toohey

FILE NUMBER: PAC 1395 of 2015

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morley

SOLICITOR FOR THE APPLICANT: Anderson Boemi Lawyers

Orders as made on 18 January 2016

PENDING FURTHER ORDER IT IS ORDERED THAT:

1. All previous orders in relation to the children spending time with the Father be discharged.

2. The Mother have sole parental responsibility for the children B born … 2007 and C born … 2009.

3. The said children live with the Mother.

IT IS FURTHER ORDERED THAT:

1. The solicitor for the Applicant Mother forward by ordinary post to the Father at D Street, E Town a letter enclosing a sealed copy of the orders made today and further informing the Father that in default of there being any appearance by or on his behalf on the adjourned date the Mother’s application for parenting and property orders may be the subject of direction facilitating those applications proceeding to undefended hearing.

2. The time for the Husband to file a response and financial statement and if appropriate a response to the Mother’s application in a case and any affidavit material to be relied upon by him be extended to close of business on 1 February 2016.

3. The matter is adjourned to Tuesday 2 February 2016 at 9:45am for directions hearing before the Registrar.

IT IS NOTED THAT:

A.Proceedings are adjourned to the Registrar’s list to facilitate consideration of the Father’s proposal if any in relation to parenting and the further conduct of the property proceedings and in the event that the Father files a response as to parenting, allocate intake dates for the Child Responsive Program.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1395  of 2015

Ms Toohey

Applicant

And

Mr Toohey

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by the applicant mother by application filed on 31 March 2015.

2. By reason of her amended application filed on 3 September 2015 the mother seeks orders as to property adjustment and parenting.

3. The present application before the Court arises as a consequence of the mother’s Application in a Case filed on 13 January 2016 in circumstances of some urgency. In that Application in a Case the mother seeks the following orders:

   a)That interim orders made on 10 September 2015 be suspended;

   b)That the mother have sole parental responsibility for the children of the marriage B born in 2007 and C born in 2009; and

   c)That the children live with the mother.

Procedural fairness

1. On 14 January 2016 a Registrar made an order for substituted service directing that the mother notify the father of the interim application by letter to the father, care of the F Correctional Centre, informing the father of the possible consequences of his non-attendance and that he could either arrange representation or seek leave to attend by telephone. The father was so advised by letter forwarded to him on 14 January 2016 by facsimile transmission to the F Correctional Centre (Exh A).

2. In the circumstances set out below it is entirely appropriate that orders be made notwithstanding the non-appearance of the father or a legal representative on his behalf. No application has been received that he be permitted to attend electronically.

3. The mother’s interim application came before the Court in circumstances of urgency referred to below and by reason of the exigencies of the Court list after hearing submissions on behalf of the mother and considering the material relied upon by her orders were made and reasons for judgment reserved. These are those reasons for judgment.

4. On 10 September 2015 the mother and father agreed to various interim orders. Relevantly those interim orders in part comprise orders whereby the children are to live with the mother and the children are to spend defined time with the father including alternate Mondays from after school or 3.00pm to Tuesday morning, alternate weekends from after school or 3.00pm Friday to before school or 9.00am Monday and at such other times as the mother and father may agree in writing.

5. On the same day various without admission and other injunctions were made as to non-denigration, non-attendance at each other’s place of residence or employment, exchange of items for the benefit of the children, non-discussion of the proceedings with the children, restriction of communication between the parties to the needs and welfare of the children and communication by written means. Those injunctions are indicative of a significantly conflictual relationship.

6. The proceedings were initially listed before a Registrar on 2 July 2015. The father was ordered to file and serve a response to the mother’s application and financial statement by 29 August 2015 and the mother’s application was adjourned to 10 September 2015.

7. The father failed to comply with the order for filing and service of his documents but nonetheless orders were made by consent as referred to above. The mother’s application was thereupon adjourned to 24 November 2015 and then at the request of the parties for further directions to 2 February 2016.

Context

1. The applicant mother relied on her affidavit filed on 3 January 2016 and the affidavit as to service by her solicitor filed 13 January 2016.

2. The parties married in 2006 that being the commencement of their cohabitation. The parties separated on 2 December 2014. The two children the subject of this application are the children of their relationship.

3. Subsequent to separation and on 20 August 2015 a final Apprehended Domestic Violence Order was made at the Local Court at G Town for a period of two years. In addition to the usual statutory orders the father is restrained from going within 100m of the mother’s residence or workplace and must not approach, contact or telephone the mother save as authorised by any orders made under the Family Law Act 1975 except for the purpose of arranging “custody of the children or in relation to the health and well-being of their children”.

4. Giving rise to the Apprehended Domestic Violence Order was the father’s conduct in attending at the mother’s rented home in her absence, climbing the fence of the property and entering the home through a window. The father entered the mother’s bedroom and took photographs of personal items sending those photographs to the mother by SMS communication. He subsequently telephoned the mother and was abusive to her.

5. The mother makes allegations as to a course of aberrant behaviour by the father prior to separation, including conduct involving a suicide attempt by gassing himself in his car in a shed that resulted in the father being admitted to a mental health facility in early December 2014. The mother gives evidence of an ongoing course of sickeningly abusive conduct and obstructive and aggressive behaviour by the father post-separation.

6. The present interim application arises by reason of the father’s further behaviour including words to the effect of “when you come over to Oakville you will find them in the shed”, “the one thing you have taught me is to understand how people can kill their children” and whilst the children were with him “do you want to say goodbye to the kids one last time?”. On 1 November 2015 the father said to the mother “I can’t believe you don’t care that I was going to kill the three of us” and then on 3 November 2015 the mother said to the father “I can’t believe you were going to take the kids life away from them”, to which the father replied “why would I leave them with you?”.

7. On 28 October 2015 the mother reported the father’s conduct to the police and the mother was informed on 11 November 2015 that the father had been charged with a breach of the Apprehended Domestic Violence Order and that his bail had been refused and that he was presently at the F Correctional Facility.

8. Understandably the mother gives evidence that she is anxious, worried and frightened by the father’s conduct and comments, particularly in circumstances where the children may be in his care.

9. The mother understands that the father’s criminal proceedings are again before the Local Court on 24 February 2016, however the father was granted bail on Friday 15 January 2016. Conditions of his bail are not known although it is to be inferred that they would be consistent with the ongoing Apprehended Domestic Violence Order. 

Interim Parenting

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. (emphasis added). This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.     In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   Those comments are equally apposite to an application heard ex parte or in the absence of a party.

4. The relevant principles in relation to parenting are well settled Goode and Goode [2006] FamCA 1346. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In the context of this matter it is not necessary to undertake a detailed examination of each of the consideration set out in s 60CC. The protective issues are overwhelming.

6. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));

   b)In interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); and

   c)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).

9. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the “legislative pathway”.

10. Clearly in this matter the presumption is not to apply by reason of the fathers’ conduct and by reason of the best interest considerations referred to below it is appropriate that the mother hold sole parental responsibility for the children.

11. Thus the orders to be made are guided by the best interests principles.

The primary considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Regard has been had to the additional considerations in s 60CC(3) such as are relevant but in the context of this matter the determination can readily be resolved by the protective factors set out in s 60CC(2)(b) with that consideration taking primacy (s 60CC(2A)) .

3. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

5. It is clear that in the present circumstances any relationship between the children and the father could not possibly be meaningful in the context of being important significant and valuable to the children. The children have been exposed to family violence and the father’s aberrant behaviour.  The father’s threats represent a serious concern.

6. The father has been in custody for a period and is now at large.  There may be a prospect that he will spend a period in custody following sentence. The resumption of his relationship with the children will require a close review of his mental health.

7. It is important at this difficult time that the children remain in the primary care of the mother with that representing a stable, valuable and important relationship for them at this difficult time.

The additional considerations

1. The more relevant considerations are briefly discussed hereunder.

2. There is no evidence before the Court as to any relevant wishes expressed by the children.

3. The children have a good relationship with the mother who has been their primary carer and will continue to be so. Their relationship with the father has been fractured by the father’s aberrant violent behaviour during cohabitation and his conduct and threats thereafter. Any prospects of the children’s relationship with the father resuming await determination of the pending criminal proceedings against the father and a review of his mental health.

4. The orders proposed by the mother will see the children have at least on an interim basis no contact with the father in circumstances where the father had been part of the household for some years until separation.  Such an order will have a protective effect on the children in that as far as possible the fears for the children are diminished. The children will remain in the primary care of their mother.

5. The father at present remains subject to criminal proceedings and there may be a prospect that following determination of those criminal proceedings he will be in custody for a period. Thus there is no present issue as to practical questions of the children spending time with the father.

6. The mother has been the primary carer of the children and will continue to do so. There is no suggestion that she has anything other than full capacity to provide for the children in a caring and protective way. The father has demonstrated totally inappropriate capacity to provide for the children and has made threats that on any interpretation would cause the mother to fear for the children’s lives.

7. The father has demonstrated no regard to having an appropriate attitude to the children and his responsibilities of parenthood. He has regrettably enmeshed the children in the circumstances of his violence and behaviour during cohabitation. The mother has demonstrated a proper attitude to the children and her responsibilities of parenthood particularly more recently in taking protective action in relation to the children by reason of the Apprehended Domestic Violence Orders that are in place.

8. The father’s conduct has been considered above and his violence, intimidation and threats to the mother and his involvement of the children in his aberrant behaviour are significant disentitling factors in this matter.

1. There is currently a final apprehended domestic violence order for a period of 12 months for the protection of the mother and the children. The nature of that order and its circumstances are referred to above.

2. These are interim proceedings that await final determination in due course.

3. There are no other relevant factors or circumstances for consideration.

4. It is in the best interest of the child that orders be made as sought on an interim basis.

5. Orders will be made accordingly.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 January 2016.

Associate: 

Date:  22 January 2016