Tracey and Wilkes

[2016] FamCA 851

FAMILY COURT OF AUSTRALIA

TRACEY & WILKES [2016] FamCA 851

FAMILY LAW – PARENTING – Interim orders – Where final orders have been made – Where final orders are then varied to make proper arrangements for child during father’s imprisonment –– Where the variation places the child with the paternal relatives – Where there is a physical altercation between the maternal and paternal families – Where the police return the child to the paternal family – Where evidence given during final hearing conflicts with evidence in support of interim change of residence –– Where the father does not file evidence – Where the Department is requested to intervene in the proceedings – Ordered that variation to final orders is now discharged – Child to return to father

Family Law Act 1975 (Cth), s 4AB

APPLICANT: Ms Tracey

RESPONDENT: Mr Wilkes

INDEPENDENT CHILDREN’S LAWYER: Mr White

FILE NUMBER: NCC 3031 of 2012

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 29 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Betts

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weightman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Powe & White Family Lawyers

Orders

1. That the orders of 24 December 2015 are discharged.

2. That the application of the mother filed 18 July 2016 is otherwise dismissed.

3. That the matter is listed for directions on Friday 14 October 2016 at 9.30 am.

   NOTATIONS

   A.The orders of 25 June 2015 are operative. The child is due to return to his father at 9 am Saturday 1 October 2016; and

   B.Consideration will be given to dismissal of the response of the paternal grandmother Ms L if the paternal grandmother is not present at court when the matter next comes before me.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3031 of 2012

Ms Tracey

Applicant

And

Mr Wilkes

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application in a case brought by the mother, Ms Tracey, in respect of the parties’ child, C (the child), aged nine.

2. The matter came before me in a duty list. The application of the mother filed on 18 July 2016 is for interim parenting orders including residence. The father did not file a response.

3. The intervenors, the paternal aunt and uncle, withdrew as parties at the commencement of the proceedings. The child has recently been in their care.

Short History of Relevant Events 

1. There is a complex history which has unfolded since 25 June 2015 when final orders were made by Austin J, which I will refer to as the “2015 final orders”.

2. There were three days of hearing which gave rise to those orders.

3. The documents which have been relied upon, and which I have read for this application are:

   a)the application in the case of the mother; 

   b)an affidavit of Ms Tracey, filed 18 July 2016; 

   c)an affidavit of Ms Tracey, filed 30 November 2015; 

   d)an affidavit of Ms J, filed 22 September 2016; 

   e)an affidavit of Ms M, the paternal aunt, filed 12 July 2016; and

   f)the orders and reasons for judgment of Austin J of 25 June 2015

4. There has also been a wealth of subpoenaed material some of which became exhibits 1 to 9.

5. The 2015 final orders provided for sole parental responsibility and residence of the child with the father. There was a set of progressive orders for time with the mother: six months of alternate Sundays from 10 am to 4 pm, then, commencing in the 2016 school year, alternate weekends and a week in each term holiday.

6. There were many other orders, importantly, a restraint on the child being brought in contact by the mother with the maternal grandparents and two young maternal cousins.

7. Arrangements did not unfold in the manner anticipated. On 25 August 2015, the mother filed a contravention application alleging the child had not been made available on the first relevant Sunday and that phone calls had not been permitted. That application was, yesterday, withdrawn and dismissed, not because the mother no longer made that assertion, but because events have overtaken it. Likewise, there was a contravention against the intervenors, withdrawn and dismissed for the same reason.

8. After a period of dispute and conflict between them, in September 2015, the father and his recent former partner, Ms J, separated. There are two children of that relationship, boys aged three years and 18 months.

9. On 7 September 2015, Ms J was granted an apprehended domestic violence order for protection from the father for 12 months. The father was charged for a breach of that apprehended domestic violence order, and when the police attended in respect of the complaint, found him in possession of marijuana. He was also in charged in respect of that offence.

10. The father arranged to place the child with the paternal grandmother, who is also presently a party on a final basis, and the paternal aunt and uncle, correctly anticipating, no doubt, that he might go to gaol.

11. On 24 November 2015, the father was incarcerated. the child moved to live with his aunt and uncle and the paternal grandmother.

12. On the evening of the next day, the mother and two female associates forced entry into the home of the paternal grandmother.

13. There is a description in the COPS notes of what the police recorded, and were told by the paternal grandmother. That a vehicle entered into the driveway of the grandmother’s property, that the paternal grandmother opened the closed rear door and was confronted by the mother, standing in the doorway, who then pushed her way in. There was a violent struggle, with the grandmother quoted as saying, “Get out of my house. I have not asked you to come inside”. The child repeatedly yelled, “No, no,” and did not want to leave. Ms Tracey yelled out to Ms L, “F-ing cunt, just hand him over or I’ll shoot you”. This continued until there was actually a physical fight between the women. One of the women grabbed hold of the child and removed him from the house.[1]

    [1] Exhibit 7

14. The mother made no reference to this incident in her supporting affidavit, although it is in her November 2015 affidavit, which I was requested to read.

15. The version given in that affidavit is much less violent and asserts the mother had a more passive role. However, tendered into evidence was a copy of the bond for 12 months to be of good behaviour. The bond was imposed on the mother on 11 August 2016, in respect of the mother’s offending on that day in November 2015.

16. Whether there was a hearing or a plea of guilty, the mother was convicted of the offence recorded in exhibit 9, including assault.

17. It must have been a frightening and confronting experience for the child. It was certainly, whatever happened, disrespectful of the paternal grandmother and her reportedly terminally ill partner, who was unable to assist her on that occasion.

18. The maternal grandparents were then contacted by police, who were searching for the child. The maternal grandparents denied that he had been there. The police recorded that they believed otherwise.

19. On 26 November 2015, the mother contacted police, and the child was returned by the police to the paternal family over the mother’s opposition. He then lived with his aunt and uncle until very recently.

20. On 30 November 2015, the mother filed a fresh final application seeking orders that she have sole parental responsibility for the child, that he live with her and that he see the father as the Court deemed appropriate.

21. On 24 December 2015, the matter came back before Austin J, who varied the final orders to accommodate the fact that the father was in prison, and that the paternal aunt and uncle were available to take on the care of the child. The orders made, effectively, put Ms M and Mr L into the shoes of the father in terms of their obligations under the orders.

22. By this application in a case, the mother seeks a discharge of those orders made on 24 December 2015 on an interim basis. The orders suspended orders 5, 6 and 7 of the 2015 final orders. In addition, they directed the intervenors to take up sole parental responsibility and residence for the child. The mother was also restrained from entering the intervenors’ residence or attending at the child’s school.

23. In May 2016, the intervenors asked the paternal grandmother to care for the child during the confinement of Ms M.

24. On 1 July 2016 the intervenors instructed the mother that they would no longer provide the child to spend time, given his testing and defiant behaviour with them after the April school holiday period in 2016. The evidence, untested, suggests that the child had been encouraged to misbehave in the carers’ home in order to be returned to his mother. That would be a matter for final hearing, if there is another one.

25. Exhibit 3, flag 2, from N School, has an interview with the child where he admitted to getting angry at his carers, but not with either of his parents. The carers were clearly inclined to set limits on the child’s behaviour and to have expectations of his conduct in the house. They had been beginning to make good progress with that.

Evidence of Ms J

1. In support of this interim application, the mother relied on an affidavit of the father’s former partner, Ms J.

2. In the reasons for judgment, at paragraph 55, in support of the 2015 final orders, his Honour refers to the fact that the mother had reported to the Department of Family and Community Services that “the father had beaten Ms J so severely that she was admitted to hospital for treatment of her injuries.” 

3. Ms J attended Court and gave evidence on the first day of trial before the mother gave evidence. His Honour reports there were no injuries evident upon her body, and during her cross-examination, she denied any domestic violence occurred between her and the father. She was not directly challenged about the accuracy of the mother’s report. Medical records relating to Ms J were later tendered, which proved she was not recently hospitalised.

4. In her present affidavit, Ms J sets out a variety of details of severe physical violence which she alleges was inflicted on her by the father, particularly, paragraphs 27 through to 31, where she says that in or around March 2015, the father grabbed her by the throat, caused her to fall to the ground, jumped on top of her, spat on her, blacked her eyes and inflicted other injuries. She thereafter had a short stay with her parents before reconciling with the father. The timing of that would have been within weeks of the final hearing in 2015.

5. Ms J also says, paragraphs 44 to 54 of her affidavit, that a couple of months after the incidents in March 2015, that the father spat on her and was otherwise aggressive and abusive towards her. That puts her allegations exactly at the time of the May 2015 hearing.

6. In early September 2015, there is evidence of extremely profane and abusive texts by the father and directed at Ms J, and there are further allegations by Ms J of violence inflicted on her by the father, including damage to her eardrum, a possible hairline fracture and other injuries. She alleged that the father grabbed, slapped and hit her. There is also evidence of violence against a family dog.

7. The evidence given by Ms J in the final hearing and the evidence given in the affidavit now in support of the mother is in direct conflict. I cannot accept the evidence in this affidavit, without it being tested, in those circumstances.

8. I also take into account from paragraph 70 and following of Ms J’s affidavit that there is a dispute between the father and Ms J over parenting of their two young children. In an act of irresponsibility, the father apparently kicked in Ms J’s screen door and as earlier stated was arrested for breach of the AVO that she had obtained in September. I use the word “irresponsibly” in the context of the father having been given the care and responsibility for his nine year old son.

9. Exhibit 1, flags 3 and 4, has two very different versions of a particular set of events involving the father and Ms J. They are in direct conflict, although both parties say that there was an incident of conflict between them on 30 September 2015.

10. Those two versions caused the police to be entirely uncertain about who was telling the truth since each version was consistent with injuries including Ms J having clumps of hair removed. The father was not gaoled in respect of those incidents. It is reasonably clear that he was arrested for breach of the ADVO in respect of the screen door.

11. Ms J denied any family violence in her relationship with the father in the May 2015 hearing. She may well have been telling the truth then, although that would put her current evidence about events in March and May 2015 in doubt. Or her assertions of severe physical violence visited on her by the father since separation in September 2015 may well be true. However, she has a different perspective now. I cannot assume that her current evidence is true or untrue. It is untested. It conflicts with prior evidence.

REASONS OF AUSTIN J

1. In respect of the family violence raised by the mother in this interim application the mother asserts wrongly that Austin J “discounted my allegations of family violence”. Paragraphs 47 to 54 of the judgment set out his Honour’s finding in that regard and his Honour came to the conclusion that there had been many occasions of physical abuse which constituted family violence.

2. Amongst other things, his Honour said this:

   [47] The maternal grandmother partly corroborated the mother about the father’s conduct, though the veracity of the maternal grandmother was questionable for two obvious reasons. First, the children’s school principal regards her as an “out and out liar”, and secondly, she denied the mother struck the father during a violent incident between them in September 2012, even though the eldest child told the Family Consultant she did and photographs of the father’s facial injuries were contemporaneously taken.

   [48]The incident between the parties in September 2012 arose out of a dispute over the father’s belated return of the youngest child to the mother. Even though the parties have different versions of the event, it is common ground the mother entered the father’s property without invitation and a violent altercation ensued. The parties physically struggled over the youngest child and the eldest child was present to witness the scene. The police were called. The mother was charged and convicted for her assault of the father, but the conviction was later quashed on appeal, apparently in the father’s absence. Regardless, the absence of conviction does not mean the mother was innocent – merely that the offence was not proven beyond reasonable doubt. Regardless of whether or not the mother assaulted the father, she was a willing participant in a melee that would not have occurred but for her ill-considered decision to trespass upon the father’s property and confront him.

   [49]The father made allegations of the mother’s past violent conduct towards him, which included her punching him and brandishing a knife at him.

   [50]Curiously, until the violent incident between them in September 2012, the parties were unknown to the police for violent conduct.

   [51] Regrettably, both children reported to reliable sources (the Family Consultant and a school counsellor) that they witnessed the parties assaulting one another on numerous occasions. It could hardly be doubted they were emotionally scarred by such experiences.

   [52]In all probability, both parties acted towards each other on numerous past occasions in a manner that comfortably meets the definition of “family violence” (s 4AB). It serves no useful purpose to try and sift through the irreconcilable evidence in an attempt to conclude which party was most at fault. They both have reason to be embarrassed by their behaviour, which surely compromised the children’s psychological health.

   [53] Although the parties made counter-allegations they each continue to make threats of physical violence, at least there have been no overt instances of physical violence between them since the altercation in September 2012.

   [54]Save in one respect, there is no evidence at all of either party committing acts of family violence upon or towards any family member other than each other. The only exception can be easily dismissed as unreliable.

Conclusion

1. The father has filed no evidence. He was asked during the course of these proceedings whether it was true that he was back before the Local Court on 13 October 2016 for a hearing. He replied that he was and it was for “a minor breach of an AVO”. This can only be described as absurdly irresponsible conduct for a man just released from prison in February with a son to raise.

2. My conclusion is that there was a change of circumstances in November 2015 when the father went to gaol. Orders were made to meet that change on 24 December 2015.

3. There has now been another change of circumstances. The interveners have, whilst not pulling out of the child’s live in a social sense, withdrawn from legal responsibility for him and in turn altered the child’s residence. It is apparent, although it will require proper testing, that they have done so with reluctance and under considerable pressure. It is appropriate that the orders made 24 December 2015 be discharged and that order will be made given the interveners no longer have a role. Otherwise, the risks to the child in each household are as analysed in these reasons.

4. This is an interim hearing. There are untested allegations. There has been an assault on the paternal grandmother by the mother. There has been a breach by the father of an apprehended violence order for the protection of his former partner. Both parties use both profane and violent language and resort to physical attack when they are unable to succeed with threat.

5. I yesterday made an order inviting the Department of Family and Community Services to intervene in these proceedings, and for that reason I have stood the matter over to 14 October 2016 for further directions.

6. However, until then, and until the final applications are addressed the 2015 final orders continue; those parts of them which were suspended having now been restored by the dismissal of the December 2015 orders.

7. Accordingly, I make the following orders.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 September 2016.

Associate: 

Date:  4 October 2016