Trieste and Nettles (No 2)

[2017] FamCA 577

FAMILY COURT OF AUSTRALIA

TRIESTE & NETTLES (NO 2) [2017] FamCA 577

FAMILY LAW – CHILDREN – Parenting Orders – where family violence found to be significant – where relationship was short and mother gave birth to twins – where violence brought relationship to an end when children were 7 months old and have had no contact with father since – where father fails to file material evidence notwithstanding being given an opportunity to do so - where mother is from New Zealand and desires to return there.  Where no proposals by father and no challenge to mother’s evidence – orders made.

Family Law Act 1977 (Cth)

APPLICANT: Ms Trieste

RESPONDENT: Mr Nettles

INDEPENDENT CHILDREN’S LAWYER: Ms Ebejer

FILE NUMBER: MLC 4342 of 2016

DATE DELIVERED: 31 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkinson

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Ebejer, Ebejer & Associates

Orders

1. All existing parenting orders are discharged.

2. The mother of D and E, both born … 2015, has sole parental responsibility for all major long-term decision relating to the children and, specifically, is at liberty to seek an Australian passport without further reference to or involvement by the father.

3. The children forthwith live with the mother.

4. Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), the mother has permission to take both children from the Commonwealth of Australia to travel with them internationally.

5. The mother has permission to have the children live with her in New Zealand.

6. By injunction, the father is restrained from having any time with or communication with the children, save for the purposes of sending gifts to a nominated address by the mother.

7. The appointment for the independent children’s lawyer is forthwith discharged.

8. The application of the mother filed on 16 May 2016 is dismissed and the response of the father filed 31 May 2016 is also dismissed.

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 Trieste & Nettles 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 MELBOURNE

FILE NUMBER: MLC 4342 of 2016

Ms Trieste

Applicant

And

Mr Nettles

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In these proceedings, Ms Trieste is the applicant.  She is the mother of a number of children but her present application is about twins D and E, aged two.  Mr Nettles is the father of the twins and the respondent in these proceedings.  On the last occasion when the matter was listed, he attended and was given an opportunity to file material.  He has failed to do so. 

2. On 6 June 2016, the Court ordered the appointment of an independent children’s lawyer.  The independent children’s lawyer has been a party to the hearing today.

3. The twins’ parents lived together for a year between January 2015 and January 2016.  Their relationship was acrimonious, as may be concluded from an intervention order being granted in mid-2015.  Whilst it was a limited relationship, so too was the intervention order because that permitted the parents to continue to live together, which they did, but also the duration of the order was only for one year.  The significance of the violence and lifestyle may be seen in that the twins were born in 2015, only days after the intervention order was granted.

4. It is also significant that later, in April 2016, when the parties had finally separated, the father was present at the Suburb F Magistrates Court and consented to an intervention order for the protection of not just the mother but also the twins.  That order too was only to last for two months.  Only two days after that expired, another intervention order on an interim basis was put in place.  In the intervening period, the mother filed an application in this court seeking sole parental responsibility, residence of the children and two orders that read:

   There be no order as to the father spending time with the children.  The mother be permitted to relocate and change the children’s residence from Australia to New Zealand.

5. Two immediate problems can be seen.  First, no order as to the father’s time with the children does not mean prohibition of time.  Secondly, the issue about New Zealand is about the children, not about the mother. 

6. On 31 May 2016, the father, who was then represented by solicitors, filed a response.  Rather quaintly, he sought:

   The respondent humbly asks to be excused from particularising the final order he seeks until interim orders have been made and further assessments are before court.

   That was drawn by a lawyer and one might ask why the father, who by then had been separated from the children for only months, could not particularise what sort of a relationship he intended the Court to understand was in the children’s best interests from his perspective.

7. The father then sought interim orders which included family reports, attendance at a post-separation parenting program, the appointment of an independent children’s lawyer, and the attendance of both he and the mother on a psychiatrist.  He then sought that there be an order for equal shared parental responsibility and that the children live with him or, alternatively, the paternal grandmother.  He also sought an injunction against the mother from leaving Australia.  The filing of that document was on the day prior to the actual hearing date.

8. On 1 June 2016, a registrar heard the matter and the parties consented to orders to attend a parenting program and a psychiatrist.  The proceedings were otherwise adjourned to the senior registrar’s list on 26 July 2016, which the parties noted was “urgent regarding the father’s time”.  In July 2016, notwithstanding the apparent urgency, the parties agreed to enrol at a contact centre for the purposes of supervision of time between the father and the children.  Again, rather quaintly, the parties added the notation to the orders that the mother did not agree to the father spending time with the children.

9. By October 2016, nothing had happened.  The parties came back to the senior registrar and, again, they consented to orders about both parties undertaking drug screening and that they generally be restrained from consuming alcohol or illicit drugs.  One might wonder why the Court was being asked to make an order that restrained people from breaking the law.  More significantly, however, is the following order.  It reads:

   The father spend time as can be accommodated by either of two contact centres with the children of no less than once a fortnight.

   These proposed orders were drawn by lawyers.

10. By October 2016, the children had not seen their father for 10 months.  They were about six months old when the separation occurred.  One might rhetorically ask, “What would they have known of him in October 2016?” but also, what was the contact centre’s role?  If the children did not know or did not recognise their father other than as a stranger, would not the contact centre have also been providing a stranger to protect, if that is what it was, these children or to introduce or reintroduce them to their father?

11. Whilst acknowledging the Court made the order and it was the mother who consented to it, notwithstanding her opposition to time in the previous June, what was proper about this order?  Reintroductions of children like these should not have been done in that particular way. 

12. Since October 2016 nothing has occurred.  In August 2016, psychiatrist Dr G assessed the father pursuant to the Court’s order of June.  The psychiatrist’s report makes interesting reading, if only because it provides the father’s side of the story.

13. The father told the psychiatrist the report was being done at his request because he believed the mother was mentally unwell.  He described the affidavit material read by the psychiatrist, presumably that from the mother, “as lies”.  He acknowledged he had been “ignored” and indeed that would appear to be evident from his material.  He also told the psychiatrist that he had been diagnosed with attention deficit hyperactivity disorder.  His work record might best be described as uneventful.

14. In June or thereabouts of 2016, he was caring for his grandfather.  He acknowledged using drugs and drinking alcohol heavily.  As for the relationship, the father described that it ended on several occasions until the mother became pregnant.  He said problems escalated, which seems consistent with the mother’s evidence, and the parties required police intervention, which ultimately meant an intervention order.  He admitted he had a violent temper until the birth of the twins which meant the problems described by the mother leading up to the intervention order in June 2015, were probably right.

15. The psychiatrist, after describing the father as a man who was angry at times and oppositional, opined a diagnosis of mixed anxiety disorder with features of social, obsessive-compulsive and generalised anxiety as well as borderline and antisocial personality traits. 

16. The psychiatrist also assessed the mother.  To the psychiatrist, she denied any use of drugs and only occasional alcohol use.  That evidence has been repeated in the witness box today.  She acknowledged suicide attempts in 2015.  She was diagnosed with an anxiety disorder but otherwise nothing was controversial.  None of her evidence has been challenged.

17. The significance of these reports is that the parties and the practitioners presumably had them at the hearing in October 2016, albeit they were not then filed.  I reiterate my concern about the nature of the agreement put before the senior registrar in October 2016.  I want to stress for the record that the present practitioners had nothing to do with this matter at that time.  Whilst the contact centre may have been instructed to provide protection for the physical wellbeing of the children, one must question what these orders did for the psychological health of twin two year olds.

18. On 13 April 2017, I made orders for the matter to be listed on 3 July in anticipation of a trial.  At that stage, according to the Court record, the father was represented by solicitors but, on 19 May, (effectively one month after they were served with notice that the matter was to be set down for trial) the solicitors ceased to act for the father and provided his address.  He told me in the first hearing in July that it was fortuitous that he was able to attend because he had been told of the hearing as the address was not his.

19. Unfortunately, despite my suggestion that he get advice and that he provide evidence, he has provided none.  He says that he has but, in reality, I think he misunderstands the point.  The only evidence before the Court is that of the mother.  She confirmed that he had not spent time with the children since 13 January 2016.  She also confirmed that she had been requested by the independent children’s lawyer to complete drug screens and they had all been returned negative.  The mother acknowledged that she had a low screen on one occasion which she explained by reference to water intake.

20. In a statement to police annexed to her affidavit and thereby incorporated into her evidence, the mother said that the father had grabbed her by the neck, pushed her head onto a couch and punched her in the face.  That violence abated for a short time but the father then again punched her in the right eye.  Police arrived and they took her to hospital.  Photographs were then provided to the court and, on the unchallenged evidence, the assault could only be described as savage.  According to the mother’s evidence, the father is known to the police, as is evident by his criminal history sheet.  At the hearing in July 2017, he acknowledged having previously been in custody.

21. Returning then to the mother’s evidence, she explained that she is currently living in transitional housing for which the lease has expired but that is currently being extended.  Her desire, however, is to move to live in New Zealand where her family resides.  She has other children and one of those children is already in New Zealand with his father.  She described all children as having a close bond with each other and the child who is currently in New Zealand regularly communicates with the others here by video calls.

22. In terms of the nature of the relationship, I asked the mother what there was left in Australia for her and she said there was nothing.  She has family in New Zealand and opportunities in New Zealand and, because of her New Zealand citizenship, she does not have a right to all of the benefits that Australian citizens might have.  She is currently receiving Centrelink payments and, other than that, she lives on her wits.  She does not receive child support from the father and she was advised by Centrelink, having regard to what had occurred, that it was safer that she not request it from him.  He does not appear to have voluntarily offered any.

23. She said that there were no other family members in Australia and her evidence today indicates that the only time she has had contact with the paternal grandmother was prior to the start of this year.  In New Zealand, she has set out in her affidavit a number of opportunities.  She will be eligible for single parenting financial assistance, and housing and also family members around her.  She has been able to enrol the child, who is currently in New Zealand, in a school there and she proposes to ultimately enrol all of the children in the same area.

24. Her position in relation to the father is that there should be no time at all, albeit that, in evidence, when I asked her about the question of him being able to send presents and gifts from time to time, she indicated that, providing he had an address that did not disclose her immediate whereabouts, she was happy for that to occur.  It is important to observe here that the independent children’s lawyer whose focus is on the interests of the children supports the orders proposed by the mother.

25. The father was given an opportunity to challenge the evidence of the mother, not only by filing his own affidavit but also by cross-examination today.  He filed no material and he declined the opportunity to cross-examine.  In his final submission to the court, which he probably was not entitled to make, he did not give me any comfort that there is any change in the wind. 

26. The function of the Court is to focus on the children’s wellbeing.  The father’s position is that he is the father and therefore he has some role to play.  Even if that was right, and I do not accept it as the case here, he would have to be starting from a very low base, bearing in mind that the children would have no idea who he is.

27. Parental involvement and cooperativeness always have an impact on what is best for a child and must be taken into account in most cases.  None of those criteria here could be met by the father.  He seems to have no regard for the rights of others and the evidence that I have, indicates that he is violent when he does not get his way.  I can well understand why the mother is frightened of him and I accept her fear is reasonable.

28. In respect of her desire to travel internationally, in the decision of the High Court majority in U & U (2002) FLC 93-112, their Honours said that whatever weight should be accorded to the right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, namely, the welfare of the child.

29. Based on the evidence that I have just outlined, there is nothing here for these children in Australia.  Their family culture is in New Zealand and the mother’s security and the welfare of the children must therefore be paramount. 

30. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

31. Regard to best interests here is twofold.  First, should there be a specific injunction preventing the father from endeavouring to simply turn up on the children when it suits him?  Secondly, what impact, and specifically what benefits, would there be for him having any form of relationship in the future?  Every relationship has to start somewhere but any relationship here must be very difficult to see working, having regard to the fact that these children were only babies when the father left the life of the mother.

32. The father has said to me today that he has tried to make efforts to get some sort of a relationship going but that is hard to accept, bearing in mind that solicitors acted for him until earlier this year and, on two occasions now, he has had an opportunity to file material indicating what his proposal was for the future of his own children and nothing has been forthcoming.  Injunctions here will preclude him from taking the law into his own hands.  If he has something to offer these children, the time is running out for any form of attachment.  If he is to make some sort of application, it may have to be made in New Zealand.

33. Secondly, the vulnerability of the children must mean that an absent father from whom they would otherwise achieve any benefit is missing.  They are entirely reliant on their mother.  Her own family is in New Zealand and there is nothing here to keep her.  In the decision of E (children) (FC) [2011] UKSC 27 the Supreme Court of the United Kingdom said the following, albeit in relation to a Hague Convention matter:

    We start from the proposition that all parents love their children and want what is best for them.  Even if the parents fall out with one another, they should be able to work out what will be best for their children.  They, and not the Courts, are the experts in their own children.  They should be able to see their children’s interests separately from their own.  They should be able to negotiate the “least detrimental” solution for them with the help of a skilled mediator if they need it.  But they will only be able to do this if they are prepared to accord one another equal respect.  Mediation will not work if one party is allowed to dominate or bully the other.  That is why it is usually thought unsuitable in cases of alleged domestic violence or abuse.  Whatever the rights and wrongs between these parents this is a mother who will need a great deal of understanding and support. 

34. In that particular statement from the English Court, if I took that as a checklist, there is little that I can find here from the perspective of the father that might provide a benefit for these children.  None of those things can be met. 

35. Part VII of the Family Law Act dictates out how a parenting dispute should be determined with the best interest principles emphasised. Section 60B sets out the legislative objects as:

    a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

    b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

    c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. An examination of the unchallenged evidence indicates that those objectives are unlikely to be met with the involvement of the father in any event.  His view is that he is the father and he should be involved.  There is much more to parenting than that. 

2. Section 61DA requires the Court to apply a presumption of equal shared parental responsibility when making a parenting order.  That presumption is that it is in the best interests of the child for the parents to have equal shared parental responsibility.  The presumption does not apply if the Court has reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  I have made that finding here.

3. It is unnecessary for me to consider the conduct of the father to see whether it fits within the definition of family violence in section 4AB because I am sure all right-thinking members of the community would be appalled at what had occurred. 

4. Section 60CC(2) requires the Court to consider the parental attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  The findings that I have made speak for themselves. 

5. Section 60CG requires that, when contemplating what parenting order to make, the Court must, to the extent that it is possible to do so, consistently with the child’s best interests being the paramount consideration, ensure the order does not expose a person to an unacceptable risk of family violence.  That requirement, based on this evidence, justifies the injunction sought by the mother.

6. In section 60CC, the Court is obliged to consider both the benefit to a child of having a meaningful relationship with both parents as well as the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  If there is a clash between those two principles, the protection of the child prevails.  That is certainly the situation here.  The mother has given evidence of her fears and she was not challenged about it.  She has also given very clear and unchallenged evidence about the conduct of the father.  His behaviour was threatening.  He shows no indication of accepting there is or was a problem with this behaviour.

7. Ultimately here, the children do not know him.  They have no relationship with him.  They are dependent upon their mother.  They have siblings in New Zealand and the mother is more likely to receive substantial financial support in New Zealand than she is in Australia.  There is little else in section 60CC that can provide any positive picture on the evidence from the father.  Nothing in the evidence indicates that, up until these two children were six months old, he had any significant role in their lives.  As such, I cannot assess his parenting capacity.

8. Another consideration is responsibility as a parent.  The violence in this case indicates a poor parental sense of responsibility. 

9. There is therefore no basis for me to make orders that endeavour to ensure the benefit to these children of a relationship with their father.  There is every reason here to ensure the children no longer are held in the hiatus because their mother does not wish to stay here.  As she has said, there is nothing here for her.  They are cared for and going to New Zealand where their future development will be around family members who will assist them.  In my view, the proposal of the mother and the orders that she seeks, subject to some changes, I now make, are in the best interests of these children.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 July 2017.

Associate:

Date:  7 August 2017