VAN EDE & GAINSFORD

[2017] FamCA 359

FAMILY COURT OF AUSTRALIA

VAN EDE & GAINSFORD [2017] FamCA 359

FAMILY LAW – INTERIM – PARENTING – Time the children are to spend with each of the parents – Occupation of the former matrimonial home – Where there are concerns raised about each of the parent’s mental health and parenting capacity – Where evidence from a family consultant is required

Family Law Act 1975(Cth)

APPLICANT: Mr Van Ede

RESPONDENT: Ms Gainsford

FILE NUMBER: SYC 2272 of 2017

DATE DELIVERED: 16 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 24 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cantrell

SOLICITOR FOR THE APPLICANT: Milevski Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kelly

SOLICITOR FOR THE RESPONDENT: Mclachlan Thorpe Partners

Orders Pending Further Order

1. The mother and father have equal shared parental responsibility for each of the children B born … 2005 and C born … 2007.

2. I order that pursuant to section 68L(2) of the Family Law Act, the interests of the children B born … 2005 and C born … 2007 be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. The Independent Children’s Lawyer has leave to inspect and copy any subpoena material and the Court file.

4. The Independent Children's Lawyer and each party have liberty to restore the matter to the list on 48 hours’ notice to the court and the other party should an urgent order be required.

5. Each of the mother and father are hereby restrained from physically chastising either child.

6. Each of the mother and father are restrained from chastising the children by making inappropriate threats to either child.

7. Each of the mother and father are restrained from speaking to the children about the proceedings or the proposals for the care of the children in the future otherwise than in the presence of a Family Consultant of this Court or Single Expert appointed by the Court, and only then if required by the Family Consultant or Single Expert.

8. Each of the mother and father is restrained from using profanities when addressing either child or in the hearing of either child AND from making disparaging or derogatory remarks about the other parent in the presence of either child.

9. The mother is to have exclusive occupation of that part of the property at D Street, Suburb E which was traditionally occupied by the family during the course of the cohabitation (the former matrimonial home). The mother is to notify the father, prior to her taking up occupation of the former matrimonial home, of the date upon which she will commence to occupy that property, and thereafter the father is restrained from entering that part of the property described herein as the former matrimonial home.

10. The father is to have exclusive occupation of that part of the property at D Street, Suburb E which can be described as “the flat” and which was from time to time during the parties cohabitation rented out and which was occupied by the father on about 20 March 2017 (hereafter called “the flat”). The mother is restrained from entering upon any part of the flat.

11. Each of the mother and the father are restrained from addressing the other in rude, derogatory terms or in a threatening manner.

12. Subject to these orders, the children are to live with the mother from 6.00 p.m. each Monday to Thursday so that they spend overnight with her and have an evening meal with her on those evenings. The mother is to deliver the children to school each Tuesday to Friday inclusive.

13. The children are to live with the father each Monday to Thursday (on school days) from after school until 6.00 p.m. at which time the father is to deliver the children to the mother outside the door to his part of the former matrimonial home. The children are to otherwise live with the father from after school on Friday until school time on Monday (the father to deliver the children to school on Monday).

14. The children are to otherwise live with each of the parties as they may agree in writing.

15. During school holidays the parties are to share equally the children’s time in such configuration as they agree to in writing prior to the school holiday period commencing. In the event of a dispute the matter may be relisted for the court to determine at each party’s risk as to costs.

16. The parties are to agree, through their solicitors, upon a Community Based Organisation (Family Relationship Centre) to attend upon for the purpose of endeavouring to create a child focused parenting relationship which will enable the parents to function as separated parents for the benefit of their children.

17. Upon an Independent Children's Lawyer being appointed the Independent Children's Lawyer is to liaise with the parties solicitors for the purpose of selecting a single expert who can prepare a report for the court touching upon those matters which the court will direct once an order is made for the appointment of such an expert. The Independent Children's Lawyer is to provide to the Court a draft minute of order for the preparation of a report by a single expert once there is agreement as to the terms of such appointment.

18. Each party is restrained from publishing any information in relation to the other or the children or these proceedings on any form of social media.

19. Each parent is restrained from enrolling either of the children in a school other than Suburb E School and Suburb F School, which are the schools the children attended during first term of this school year.

20. The parties are required to attend a Child Inclusive Conference on 22 May 2017, the father to attend at 9 .00 a.m. and the mother and the children to attend at 10.00 a.m. A letter from Child Dispute Services with further information will be sent to the parties.

21. The matter is listed for further mention before me at 10.00 a.m. on 24 May 2017.

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 Van Ede & Gainsford 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

FILE NUMBER:  SYC 2272/2017

Mr Van Ede

Applicant

And

Ms Gainsford

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Van Ede (the applicant father) and Ms Gainsford (the respondent mother) seek interim orders for parenting their children B, born in 2005 and C, born in 2007. Each seeks an order that the children live with them, and each seeks restrictions on the time that the children should spend with the other. Other injunctions are sought by each of the parties. Each also seeks orders for exclusive occupation of the parties’ property at D Street, Suburb E.

Background Facts

1. The father is 42 years of age and the mother 45 years of age. They were married in 2004, however, they commenced their cohabitation at an earlier time.

2. The father works in information technology by occupation and the mother is an academic working in a university.

Allegations made by each party

1. Before addressing the allegations contained in each party’s affidavit, I record that the mother’s affidavit consists of some 272 paragraphs, plus annexures, providing a total of 84 pages material. The father’s affidavit consists of 206 paragraphs, plus annexures, totalling 90 pages of material. Given that circumstance and given that the matter was listed in a duty list, I restricted the parties to 40 paragraphs each. Each party then provided a list of the paragraphs they relied upon.

2. Turning then to the applicant father’s nominated paragraphs, the following relevant facts and allegations are contained. The father has observed the mother hitting B across the face on at least six occasions during 2015 and 2016. He has heard the mother say to B in response to the child informing her that she would tell her school that the mother had hit her on the face “if you do, the police will take you away, you will never see your friends or family again and you will be put in a foster home where you will get raped by strangers.” The father reports that B was distressed by such words.

3. The father reports he has observed the mother shouting at B and observed B visibly distressed by such shouting and having said the words “I want to kill myself.” He observed the mother say to B “you’re a bitch and you should kill yourself, the family would be better off if you did and we’d have more money.”

4. The father alleges he has observed the mother address B in an offensive and abusive manner, calling her a bitch, a slut, and a fucking princess.

5. In February 2017, the father made a report to Suburb G Police Station of the behaviour which he said was abusive directed by the mother to both the children and himself. On 24 March 2017, the father contacted the Department of Family and Community Services and made a report of the abuse he alleged was exhibited by the mother to the children.

6. The father alleges that on 14 January 2016, the mother assaulted him by punching him hard in the region of his right ear. He alleges he was further assaulted on 31 December 2016 by the mother kicking him.

7. On 20 March 2017, the father moved into the downstairs self-contained flat at the former matrimonial home.

8. The father alleges that the mother is not maintaining a tidy and healthy environment for the children to live in.

9. The father alleges that on 20 March 2017, at about 10.05 p.m., the mother kicked the door to the apartment he was in and made a hole in the door. The father describes the mother’s behaviour that evening whilst she was insisting that the children, who he says were asleep at some time after 10.00 p.m., be woken and moved to the upstairs part of the house. The father says that thereafter he heard an electric saw start up outside of the apartment. (I note that there is no issue that the mother did not have an electric saw with her on this occasion). The father describes the mother physically handling C on this occasion in a manner that was distressing to C.

10. The father alleges that he has been the full-time carer for B since she was 12 months of age. At that time the mother returned to full-time work. He alleges further that he was the principal carer for the children following C’s birth and the return to work by the mother. He concedes that the mother cared for the children and was involved in their care when they were not at work. He makes no criticism of her care for the children in those early years.

11. It is the father’s case that the parties separated in December 2016. In the 12 month period prior to that, the father says the mother would leave the home at varying times during each morning and return between 8.00 p.m. and 10.00 p.m. in the evening. During that time, it is the father’s case that he was the primary care-giver for the children.

12. In answer to the mother’s application that the father vacate the former matrimonial home, the father sets out details of his financial circumstances and that which he understands to be the mother’s financial circumstances. He makes a case that he could not support himself adequately if required to leave the former matrimonial home. He describes the property in which the parties live and makes a case for the parties being able to occupy the subject property as separate residents.

13. The mother in her affidavit alleges she is the primary care-giver of the children and has been throughout their lives.

14. In response to a complaint by the father that the mother was restricting his time with the children, she referred to a letter dated 6 April 2017 from her solicitors to the father’s solicitors where she offered that the father should spend time with the children under the mother’s supervision.

15. In relation to the father’s allegations of violence perpetrated by the mother on himself on 31 December 2016, the mother says that between 26 December  2016 and 2 January 2017, the father had no contact with either the children or herself.

16. The mother alleges that the father sent text messages to B following the end of March which were inappropriate in that they drew the children into the dispute between the parents.

17. Following 21 March 2017, the mother removed the children from the former matrimonial home to reside in temporary accommodation. She requested through her solicitors that the father vacate the former matrimonial home. In April this year she returned to the former matrimonial home and there was an incident involving the mother and the father where she alleged he pushed her in the back, knocking her to the floor. She was injured. The mother telephoned 000. Two police officers arrived at the house. She found it difficult to make a statement as she was in pain and was suffering from a severe migraine. She sought medical treatment. She was advised by police that the father would be served with an AVO requiring attendance at the Suburb H Local Court on 2 May 2017.

18. The mother gave evidence about the physical separation of the parties on 20 March 2017 and the events leading up to that. The mother says that following the parties’ separation, they had agreed that the children would always spend school nights in their usual beds in the upstairs portion of the house. In order to convince the father to open the door where the children were with him in the downstairs portion of the house, the mother engaged an electric power tool, she says knowing it would not reach the door. She switched on the device, which was a circular saw. She claimed she had no intention of actually using it to cut the door. The father threatened to call the police. The mother obtained the children and took them to the upstairs portion of the house.

19. The mother set examples of text messages which the father had sent to B, which she said are inappropriate. These messages, the mother says, directly involve the children in the dispute between the parties.

20. In relation to occupying the former matrimonial home, the mother says she does not have the financial capacity to rent other accommodation close to the children’s school. In paragraph 67 and 85, the mother sets out her concerns in relation to the father’s mental health. She describes statements made by him to her “over the years” in relation to his difficulty sleeping. The mother says the parties occupied different sleeping bedrooms after 2005 when the father ceased sleeping in the main bedroom. In paragraph 85, the mother sets out details of an incident where she took the parties’ dog to a vet, and the vet later reported to her that the father had arrived “rather agitated” to make sure the dog “was actually here”.

Issues

1. In this matter each of the father and mother raise serious concerns about the mental health and parenting capacities of the other. The children are aged 12 and 10 and as such are very vulnerable to poor and/or dangerous parenting.

2. The mother’s case denies that one of the events described by the father as occurring on New Year’s Eve 31 December 2016 ever occurred or could have occurred.

3. The father describes actions by the mother which include making statements to the parties’ daughter which, if true, must be seen to amount to serious child abuse. The mother describes a history of the father’s childhood which may have some impact upon his current mental state.

4. Each of the parents describes themselves as the primary carers for the children during the past few years.

5. The parties separated at the end of 2016. That fact appears common. Thereafter the father has resided in a flat which is situated below the main portion of the house. The mother has resided in the upstairs portion of the house. The mother says there was an agreement between the parties which operated at least until the end of March this year which provided for the children to sleep in the upstairs portion of the house during the school week. The mother said that agreement was implemented.

6. Neither of the parties has the capacity to rent appropriate accommodation for themselves and the children and the mother seeks that the father vacate the whole of the former matrimonial home. The father seeks that each party reside in a portion of the former matrimonial home.

Determination

1. This matter raises significant concerns for the wellbeing of the subject children. The evidence does not show that any officer from the NSW Department of Family & Community Services has had contact with the children notwithstanding the father stating that he has made a complaint to an officer of that Department and was told they would take action. Likewise the Father says he has complained to the NSW police about the mother’s treatment/abuse of the children and was told some action would take place. If the father accurately reports these occurrences then for some reason no action, know to the father, has occurred. 

2. In such circumstances the Court finds itself in an invidious position. I propose to appoint an Independent Children's Lawyer to represent the children, however, that may take 10 to 21 days to be put in place. I propose to order the parties attend upon a Family Consultant of this Court, however, the workload of the Family Consultants of this court mean that even if arrangements are made to see the parties and children urgently and then prepare a report for the Court that process may take four weeks.

3. The Family Law Act requires that the Court act in a manner which protects children from harm and promotes their best interests. In this matter it is not possible at this time to determine what arrangement for the care of the children might reflect their best interests.

4. What can be done? It seems that the parties had at least agreed that following their separation in December 2016 the children would sleep upstairs in the main part of the former matrimonial home during the school week. I can order therefore that the children live with the mother during the school week and spend the weekends with the father. I can put in place restraints which contain the behaviour of the parties towards the children and each other.

5. The mother now seeks the children’s time with the father be supervised, however, the evidence relied upon to support the necessity for same long precedes the agreement which the mother entered into following the separation of the parties in December 2016.

6. It will be important to preserve the relationships between the children and each of the parents until the court is in a position to receive objective evidence from experts and/or documents which help to inform a properly based determination.

7. Given the mother’s work times it seems appropriate that the children be delivered to school by the mother from Tuesday to Friday and that the father collect the children after school and care for them until 6 pm during the week days. Then from afterschool on Friday until school time on Monday morning the children be cared for by the father.

8. Each party and the Independent Children's Lawyer will have liberty to restore the matter to the list on short notice.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Justice Le Poer Trench delivered on 16 May 2017.

Associate:

Date:  16 May 2017