Truman and Truman (No. 3)

[2007] FamCA 1522

FAMILY COURT OF AUSTRALIA

TRUMAN & TRUMAN (NO. 3) [2007] FamCA 1522

FAMILY LAW – CHILDREN – Restraint

Family Law Act 1975 (Cth)

APPLICANT: Ms Truman

RESPONDENT: Mr Truman

FILE NUMBER: SYF 4438 of 2006

DATE DELIVERED: 7 December 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 7 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Faye Marie Nicholls & Associates

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

1. Pending further order, an order is made in terms of paragraph 2 of the orders sought in the Response to an Application in a Case dated 6 December 2007 filed on behalf of the father as set out hereunder:

   “2.That pending further order the wife be retrained from causing or permitting Mr Z from coming into contact with the children, M born … June 1998 and S born … March 2001 (“the children”) during the periods the children are with the wife.

2. Leave by consent to the husband to issue subpoenas to:

   Department of Community Services

   V Hospital

   New South Wales Police

   The wife's psychologist.

3. The Court requested that the Registry Manager request of the Clerk of the Local Court at Y the production to this Court as soon as practicable the records of that Court in relation to the Apprehended Domestic Violence proceedings in which the protected person is the wife and the defendant is Mr Z referred to as ….

4. The return date of 11 December 2007 is vacated.

5. Leave to the parties to restore the matter before Judicial Registrar Loughnan by arrangement with my associate.

6. Leave to the parties to jointly approach the associate to His Honour Justice Rose of this Registry in relation to the further carriage of the proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4438 of 2006

MS TRUMAN  

Applicant

And

MR TRUMAN  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, the eldest daughter M born in June 1998 and the youngest daughter born in March 2001.  They are nine and six. These are rather unique proceedings because I am being asked to make an order in a case which is part heard before a Judge. The matter has been assigned to Rose J.  His Honour made orders on 16 April, which put in place certain arrangements and further orders were made for the progress of the matter.  In the meantime, I understand there has been an appeal in relation to the interim parenting decision.  The consequence of all of that is that I need to be careful because it is not for me to review a decision made by the trial Judge on 16 April 2007. The Full Court is being asked to consider that, and, presumably, whatever needed to be done, whether a stay was sought and refused or never sought, the question of what should happen pending the appeal must have been dealt with. In those circumstances I should not interfere with the substance of his Honour’s orders without good reason. Further, there in little evidence before me. I am not favoured with any of the evidence that led his Honour to make the order of 16 April 2007. I am not privy to what his Honour was told on that day, what the family consultant (who appears to be Ms T) put forward as evidence, or anything else.  That is not critical in the circumstances of this case because the matter before me relates to the mother's partner, Mr Z and there is no mention of him in the orders made in April. I understand that the evidence would be the relationship between the mother and he only commenced in February, so his involvement might not have been a matter of issue between the parties at that time.

2. The event that brings the matter to Court is a violent assault by Mr Z on the mother on 1 November 2007.  She reported it to the police.  An interim or a temporary apprehended violence order was put in place in quite significant terms, preventing contact between the mother and Mr Z.  The mother attended at V Hospital to have the details of her injuries recorded and either she or Mr Z gave details of the incident to the New South Wales police.

3. The father found out about it later.  He was not told by the mother.  When he found out about it, he made some inquiries with people he knew; he made some inquiries of the school, and he ultimately retained the children. As I understand it that retention caused the mother to bring proceedings to recover the children. In addition I understand that she enlisted the help of the police and was able to informally recover the children, presumably based on the orders of 16 April 2007.  It is a bit unusual that the police would act on bare orders, but, anyway, they did.  So the children were back with her.

4. The orders that the father seeks are that, pending further order, the wife be restrained from causing or permitting Mr Z to come into contact with the children during the periods when the children are with the wife.  In the alternative to paragraph 2, in the event that the wife fails to undertake that until further order she will ensure that Mr Z will not be present, then the father seeks that the orders of 16 April 2007 be suspended and the children live with the husband.

5. I asked learned counsel for the mother what the mother's attitude to that was. He responded to the effect that although it would not be convenient or consented to by the mother, it would be practicable first of the options to be put in place and of the two proposed orders she would favour that if something has to happen.

6. The order sought in Paragraph 2 is an injunction. S 68B of the Family Law Act sets out the injunction power in relation to children. There has been a discussion from the Bar table about what standard of proof applies and what criteria there are in relation to the granting of an injunction. I do not think there are any. Injunctions are to be proper orders. In relation to s 68B, one would take into account the best interests of children.

7. There has been some discussion of whether I would need to find an unacceptable risk or not.  I do not know that that is terribly apposite to the circumstances of this case.  That is a question in relation to the task of the Court in making findings of fact. Often the Court cannot get to the bottom of some allegation or issue and it has been accepted that the enquiry becomes whether or not there is an unacceptable risk to a child.  The High Court has spent 30‑odd years telling this Court not to invent criteria for the exercise of discretion.  I think I would be doing that if I imported into this task today the idea that I had to be satisfied that there was an unacceptable risk of something happening.

8. My task is to make an order in the best interests of these children.  How one goes about that is set out in the legislation, and there is a number of matters that the Court should take into account.  They are set out in some priority.  There are primary matters and then additional matters.  The primary matters are the benefit to a child of a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I do not think that the circumstances of this case permit the enquiry to go much further than that. The additional considerations deal with the views of the children - we do not have any reliable expression of that today; the nature of the relationship of the children with parents and other persons - there is some evidence about that but I cannot make a finding about it. Insofar as their relationship with Mr Z goes or their wishes, I do not think that is a relevant matter. If I am concerned with the safety of a child, one would not ask a six‑year‑old child whether they thought they had a good time with that person or examine the nature of their past relationship. The other matters are not particularly apposite: the willingness and ability of parents to facilitate a close relationship - that is hotly at issue here. The mother thinks that the father has taken advantage of the circumstances to further his case in a forensic sense. That is a little unfair in the circumstances. There is no suggestion that he caused the events of 1 November. As to the effect of likely changes in a child's circumstances - the worst of it here would be the children not seeing Mr Z for a period.  I do not have any reason to believe that is going to be dangerous for them. As to the practical difficulties and expense - I have not been told anything about that.  It may be that there are some practical difficulties and inconvenience for the mother's household. As to the capacity of the parents - that is not really an issue.  The subject matter of these proceedings is something did and would overbear the mother's capacity. As to the maturity, sex, lifestyle, background of the children - they are young.  That is a relevant matter. As to the attitude to the child and the responsibilities of parenthood demonstrated by the parents - there is nothing that comes to attention about that. The mother could not be criticised in relation to the incident.  The children were not there.  She ensured that they would be safe on the evening after the incident by staying with somebody else, no doubt out of her concern for the children. In relation to any family violence that involves the child or a member of the child's family or family violence order that applies to the child or a member of the child's family – that is the nature of the problem here. The Act goes on to explain how one drills down into those matters. Coming back to the primary considerations. The first one is not relevant here because there is no suggestion of interfering with the relationship of the children with either parent. The critical issue is the need to protect the children from psychological or physical harm from being subjected to or exposed to abuse, neglect or family violence.  The event described to the police by the wife or Mr Z on 1 November or soon thereafter was not “an unfortunate event”, not “an altercation” it was violent assault and unacceptable behaviour.  There is no ambiguity about it and the conduct was indefensible. Somebody capable of that behaviour is capable of behaviour more directly in the presence of or to a child. If that is not the case, at least there will need to be some evidence about it.

9. We do not know what effect this has had on the children.  The mother has not told us. For one reason or another, she has not set out the detail of the event in her affidavit, nor has Mr Z. Neither has the mother explained how the assault was represented to the children.  But that leaves me left to speculate about it.  If the mother or Mr Z were concerned enough to give the information in the police record to the police, it is likely to be true.  The most likely reason he or she said all of that to the police was that it was true.  If she went to the hospital to record the consequences of the event, it is most likely that there were injuries which she thought could be recorded by a hospital that would be of some significance in terms of legal proceedings against Mr Z or proceedings for her own protection or whatever.

10. Now, there might be a story to be told about it, and it might be that this was the only event that will occur in the world that these children inhabit in the mother's household.  But, in the circumstances of the evidence, I cannot take that on faith.  Knowing that somebody they love has been hurt can have a devastating impact on children. The younger children are, the more harm is likely to come to them. Young children do not have a way of processing that sort of information. They might think this is somehow their fault, for example.  They might be afraid for themselves.  We do not know.  We will try and get to the bottom of it, but it is going to be a job of work.  In the meantime, it is in the children's interest that they not be exposed to the risk of this happening.

11. Being prone to violence is not like the measles or a cold where a person may simply get over it. I accept that some people do, but, as I say, there is a job of work to do for the mother and Mr Z to do to present that as a likely outcome.  Children should not have to be anywhere near anything like this.

12. So, the injunction is warranted. I will make the injunction until further order. I am told that there other issues between the parties. I do not know what happens in circumstances of an appeal. I assume the parties go back before the trial Judge in relation to those issues. The problem arises because the processes of the LAT hearings and the Judicial Duty List are very different. If I am going to be involved, I will appoint an Independent Children’s Lawyer, and that will delay the matter for two or three weeks. If the matter goes back to the trial judge there may be no such appointment. The judicial Duty List lacks the sophistication of the LAT system where you have the family consultant in the court room and the hearing takes a very different course. Not just for my own workload point of view, I would prefer if the matter is listed back before his Honour, who has some familiarity with it.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate

Date:  20 December 2007