Walsh and Walsh
[2013] FMCAfam 92
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALSH & WALSH | [2013] FMCAfam 92 |
| FAMILY LAW – Parenting – interim proceedings – significant allegations as to violence and abuse – significance of protective considerations – young child aged three – father to have supervised time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Marvel [2010] FamCA 101 Goode [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS WALSH |
| Respondent: | MR WALSH |
| File Number: | WOC 988 of 2012 |
| Judgment of: | Foster FM |
| Hearing date: | 8 January 2013 |
| Date of Last Submission: | 8 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cooke |
| Solicitors for the Applicant: | Legal Solutions |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Hansons Lawyers |
ORDERS
All previous parenting orders be discharged.
Pending further order the child [X] born [in] 2009 live with the Mother.
Each party must:
(a)contact the Catholic Care Contact Centre [C] (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spend with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days notice.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the Father is to have contact with the child each fortnight for two hours and such contact is to occur at the Contact Centre.
The Mother or some other person nominated by her must facilitate the delivery the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in this order, then, contact shall occur at the times that are offered by the Contact Centre.
The time the children spend with the Father under this order is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.
The Father must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
If during the currency of these orders the parties and the Independent Children’s Lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
THE COURT FURTHER ORDERS THAT:
In the event of agreement between the Mother and Father as to the use of a commercial contact provider in the event that such service can provide supervised contact of two hours per fortnight at an earlier time than the Catholic Care Contact Centre at [C] then the parties are at liberty to utilise that commercial contact service until such time as the Catholic Care Contact Centre [C] is able to commence such time provided always that the cost of any commercial centre shall be paid for by the Father.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the [X] born [in] 2009 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave is granted to the parties and Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court with such Subpoena to be returnable by Friday 15 March 2013.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.
The matter is adjourned to Monday 18 March 2013 at 9.30 am for a directions hearing.
Leave is granted to the Independent Children’s Lawyer to re-list the proceedings on short notice by application to the Court in chambers in appropriate circumstances.
THE COURT NOTES THAT:
(a)The proceedings are adjourned so as to facilitate the intervention of the Independent Children’s Lawyer in the proceedings and for the Court to give consideration to the nature of the single expert’s report to be obtained in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Walsh & Walsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 988 of 2012
| MS WALSH |
Applicant
And
| MR WALSH |
Respondent
REASONS FOR JUDGMENT
The Proceedings
These are parenting proceedings commenced by the applicant mother by application filed on 29 October 2012, in relation to the child [X], born [in] 2009.
In that application, the mother seeks final orders that she have sole parental responsibility for the child, that the child live with the mother and that the child spend time with the father as agreed between the parties and that during times the child spends with the father, the father is not to physically discipline or assault the child, or allow any other third party to do so.
By way of interim orders, the mother seeks orders that she have sole parental responsibility for the child, that the child live with the mother and that the parties do all things and sign all necessary documents to ensure the child spend time with the respondent father at the Catholic Care Children’s Contact Centre in [C], at times as the contact centre is able and costs associated with contact be met by the respondent. Further, that an independent children’s lawyer be appointed.
The mother’s application is supported by her affidavit filed on 29 October 2012, her affidavit filed on 21 December 2012 and a further affidavit filed on 2 January 2013, an affidavit by the maternal grandfather, Mr F, filed on 4 December 2012 and a further affidavit of the maternal grandfather filed on 2 January 2013 and an affidavit by the maternal grandmother, Ms F, filed on 4 December 2012.
The proceedings first came before the court on 5 December 2012 and on that date the parties entered into interim orders, pending a full hearing of the interim applications as between them.
Those orders relevantly provided that the child live with the mother, that the child spend time with the father each Tuesday from 4.00pm to 5.30pm, each Thursday from 4.00pm to 5.30pm and each Saturday from 10.00am to 12.00pm until 8 January 2013. The orders further provided that changeover be affected at the McDonalds Family Restaurant at [omitted]. The orders further provided that the child spend such other time with the father as may be agreed between the parties, that the father do all things necessary so as to attend a parenting program or parenting after separation course, that during times the father spends with the child the father is not to physically discipline the child or allow any other person to do so and further, that the father is not to discuss the court proceedings or denigrate the mother in the presence of the child or allow any other third party to do so.
Proceedings were adjourned for interim hearing on 8 January 2013.
The father filed an amended response on 21 December 2012. In that amended response the father seeks final orders to the effect that the parties have joint parental responsibility for the subject child, that the child live with the mother and that the child spend time with the father on an alternating two-week cycle, in week 1 from 1.00pm Friday to 6.30pm Sunday and in week 2 from 4.00pm Tuesday to 8.00am Friday or the commencement of day care, half of the New South Wales school holiday periods and for other periods on special days. The father also sought other orders by way of specific issues orders in relation to the child.
By way of interim orders, the father sought in his amended response orders that in summary provided that the child live with the mother, that the child spend time with the father firstly for a period of four weeks every Monday and Wednesday from 4.00pm to 7.30pm and every Sunday from 9.00am to 6.00pm. Thereafter for a period of two months, every Monday and Wednesday from 4.00pm to 7.30pm and every Friday from 5.30pm to 6.00pm Saturday and thereafter, until the child attends school, in week 1 from 1.00pm Friday to 6.30pm Sunday and in week 2, from 4.00pm Tuesday to 8.00am Friday or the commencement of day care, together with time on other specific occasions.
The father also sought various specific issues orders in relation to the subject child.
Background
The mother was born [in] 1981. She is currently 31 years of age and is full-time engaged with the care of the child.
The father was born in 1983 and is currently 29 years of age, is employed full-time as a [omitted] in [M].
The child [X] is the only child of the relationship between the father and mother.
Parties commenced cohabitation in either December 2001 or December 2002.
They were married in 2008 and separated on a final basis on 17 August 2012 when the mother moved out of the then matrimonial home.
The mother says that she always had a difficult relationship with the father. She asserts he was abusive to her in the way he controlled and intimidated her. He has physically hurt her in the past and she was always in fear that he would hurt her when he was angry.
In August of 2012, she finally decided to leave him because of the way he disciplined and intimidated the child. The mother believed that if she was not around to protect the child, he would abuse the child badly as the father cannot control his temper.
The mother also believed that the respondent’s continuing intimidation of the child and the mother was not good for the child psychologically.
There was an incident on 16 August 2012 when the father used abusive language to the child and the mother thereupon announced her intention to separate. On 17 August 2012 the mother packed her things and the child’s things such as she could into her car.
The respondent’s parents were notified of her intention to separate and it was agreed on 18 August that she would see the father at his parents’ home. The father said words to the mother to the effect of, “I can break your dad’s neck to get to [X]. I could knock him out, I can kill him. I can rip off screen doors to get into your dad’s house. I will slash your tyres if you want. You won’t go anywhere.” He continued, “I will kill my own parents if they stop me from doing what I want. It is disgusting and childish what you are doing and you need to grow up.”
The respondent continued to belittle and abuse the mother.
The mother ran to her car and left and she returned to her father’s residence where she has been residing since separation.
As a consequence of that incident and subsequent incidents, the mother made complaint to the local New South Wales Police Service officers and the New South Wales Police Service issued an apprehended domestic violence order application as against the respondent father.
An interim order was made at the [M] Magistrates Court on
4 September 2012 and a copy of that order is exhibited to the mother’s affidavit.
Subsequently the ADVO was listed to be heard on 2 October 2012, but was adjourned to 30 October 2012. It is common ground that subsequently following a hearing, the apprehended domestic violence order application commenced by the New South Wales Police Service was dismissed, presumably on the basis that the presiding magistrate, having regard to the fact that the parties were now separated and the mother living separate and apart from the father, could not find a reasonable fear of ongoing intimidation or domestic violence as against the mother by the father. However the court does not have the opportunity of having before it the presiding magistrate’s reasons for determination.
The mother in her affidavit sets out a significant history in relation to the domestic relationship and says that during the cohabitation, her own mother was never allowed to attend at the home when the father was there, nor was she allowed to babysit the child. The father’s parents were the only people allowed to babysit the child. The mother says she found it very difficult to call her mother when the father was around as he would have a go at her or yell at her if she was on the phone.
She says she generally never telephoned anyone when the father was around, as she would not be able to speak to them or at all, as a consequence of the respondent’s antics.
The mother says that on 5 August 2012 there was an incident at the then matrimonial home when the respondent, accompanied by his father, commenced to put some gym equipment under the carport of the shed, which was on the property.
The mother said to the father, “Is that where that’s living?” That is, is that where the gym equipment is to be placed. The father said to her, “I will talk to you later.” The father then sat on the lounge in the premises for five or six hours just staring at the wall. The mother said to him, “What’s wrong?” The father said, “You opened your fucking mouth.” The father with that then went outside and punched the shed continuously many times. The father kept coming up to the kitchen window and glaring at the mother, then going back to the shed and punching it. He paced backwards and forwards with a staunch walk. He then started knocking down the gym gear.
The mother was most concerned as to the respondent father’s aggressive behaviour. The mother says that the father, when aggressive with her or the child, would usually scream at her from a few centimetres away from her face and punch holes in the wall besides herself and the child, which would be frightening.
The mother, whilst she was residing in the same household, relied upon the respondent’s family, particularly the respondent’s father, to talk to the father and calm him down. However, more recently the father has become defiant with his own family and the mother has grave concerns the respondent would not control his temper and would physically hurt herself and the child.
The mother believes that the respondent may be taking steroids. The father likes to compete in strong man competitions and in 2011, came second in one particular competition. The mother has observed a number of pills of indeterminate nature in white bottles and in foil packaging in the father’s work bag. When confronted by this circumstance, the father simply asserted that they were antibiotics as a consequence of pain experienced by him in his testicles.
The respondent was confronted by the mother on a number of occasions as to his physical presentation. She says he would gain and lose weight very quickly over a short period of time. She asserts that he has body image issues, which had continued throughout the period of the cohabitation.
The mother gives evidence that during the period of the relationship, subsequent to the birth of the child, she was the primary carer of the child. There is certainly no doubt as to this circumstance, as the father himself concedes that he was working full-time throughout cohabitation, long hours and often six days per week.
The mother says the child was never allowed to cry, as it made the respondent angry. She says she spent most nights sleeping on the lounge with the child to ensure the child was calm and that she did not cry.
The mother says that there was an incident in July 2012 when the parties’ bull mastiff dog ripped some latticework from the side of the home. The father then beat the dog in front of the child and the mother, punched the dog a few times in the head and body and the mother and child observed the dog yelp and whimper. The father said, “I’m going to cut that dog’s neck.” The child then upon moving inside was crying and said, “Daddy is going to kill my dog.”
Later that night, the child was misbehaving and the child was spoken to by the mother sternly and she said the child responded, saying “Daddy is going to cut my face off.”
The mother also refers to an incident in August of 2012, while she was putting washing away. The child was standing nearby watching and as the respondent approached, the child grabbed the respondent’s trousers. The respondent thereupon punched the door frame of the linen cupboard, which was inches away from the mother’s face.
The mother asserts that the father would yell at her and the child would say to the father, “Stop talking, Daddy” or start crying. The respondent would thereupon yell at the child, saying words to the effect of, “You keep the fuck out of this” or “Fucking shut up or I will give you something to cry about.”
When the father was yelling at the child, the mother’s tactic was to jump in front of the father so that his anger was directed to the mother and not to the child.
The father had said on many occasions to the mother, “I will kill [X] and you if you leave me, as I cannot live without you” or words to the effect of, “I will have to kill you, as I could not bear to see you with someone else or see [X] raised by someone else.”
The mother also relies upon her further updating affidavit filed on 21 December 2012. In that affidavit, the mother informs the court that she has been seeing a consultant psychologist, Ms R, to help her deal with circumstances arising out of the marriage and separation.
By 5 December 2012, the date upon which the mother swore her affidavit, the applicant mother had seen the psychologist on
14 occasions and attached to her affidavit is a report by Ms R dated
4 November 2013. The mother was referred by her general practitioner under a Mental Health Plan in August of 2012 for the purposes of consulting Ms R.
The report from Ms R observes:
Ms Walsh was referred to me for psychological assessment and treatment by her GP, Dr S, on 22 August 2012. Ms Walsh presented for her initial assessment session on 27 August 2012 and has attended a total of 14 sessions to date. Ms Walsh presented with symptoms of trauma and anxiety following breakdown of her 10-year relationship. Ms Walsh presents as highly emotional and traumatised.
The report continues:
Ms Walsh reported that her low self-esteem and anxiety escalated in her mid-20s when she and Mr Walsh (the father) began having difficulties in their relationship. She states that her GP prescribed her anti-anxiety medication and she began attending psychological treatment at that time. Ms Walsh reports that she attended 10 psychological treatment sessions at that time and continued taking medication for five years. Ms Walsh stated that the medication and treatment helped somewhat but she now believed that her difficult relationship was the main contributor to the way that she was feeling. She states that she decided to cease the medication when she was 29 because she believed it was no longer effective.
The report further notes:
Ms Walsh reported that she began dating her husband, Mr Walsh, when she was 21 and he was 19. She states that they met at the [omitted] where she was working and began quickly spending all their time together. She states that Mr Walsh was extremely jealous and suspicious right from the start of their relationship. She states that he would check her underwear after she had been to work, would check her phone daily and encourage her to stop seeing her girlfriends. Ms Walsh states that she wanted his approval so badly that she just did what he wanted. She also believed that his possessive behaviour was evidence that he loved her. Ms Walsh stated that the more isolated she became from her friends and family the more dependent she became on Mr Walsh. She stated that when Mr Walsh was in a good mood she felt happy and hopeful. They were married in 2008. Ms Walsh states that soon after they were married Mr Walsh’s mood swings became more pronounced. She states he rarely had a conversation with her and had no interest in what she had to say. She states he would ring her up to 10 times a day if they were not together and would constantly accuse her of having affairs. Ms Walsh believes that Mr Walsh knew she would never have an affair but constantly accused her as a form of abuse. She states that he would fly into a rage if she inquired about his whereabouts and when he went out from time to time in the evenings.
The report continues:
In treatment Ms Walsh had debriefed countless traumatic incidents involving her three-year old daughter and herself. The incidents she described include verbal abuse, physical abuse, bullying and intimidation. She reports both she and [X] had been restrained, pushed and locked in dark rooms. Ms Walsh reports having to get plastic surgery after an incident where he punched a door and it splintered into her face. Ms Walsh reports Mr Walsh smacking [X] far too hard on the legs and holding her in the air by her clothes whilst in a rage. Ms Walsh stated that [X]’s legs often had red welts and bruises on them from the smacks.
Ms Walsh reports that Mr Walsh smacked [X] at least once a week at family dinner and often up to four times a week.
Ms Walsh claims that Mr Walsh told her on more than one occasion that he would kill both her and [X] if she leaves.
Ms Walsh states that Mr Walsh would often insist on inspecting her underwear for signs of infidelity and intermittently interrogated her about whether his brother was actually [X]’s father.
The report outlines incidents otherwise referred to in this the Court’s reasons for judgment above. The report continues:
Ms Walsh now states she is living with her father in [omitted] where she feels supported. She remains frightened about her own safety but believes it was more dangerous to stay living with
Mr Walsh. Ms Walsh reports that her mother is also providing her and [X] with emotional and practical support. In treatment I have begun working with Ms Walsh to assist her in developing assertive communication skills and boundary setting skills. I am helping her to find ways of managing her fear and keeping herself safe. I am also working to help her manage the high levels of guilt she is experiencing for exposing her daughter to so much conflict. I have noted an improvement in Ms Walsh’s self-esteem since I first met with her in August. Despite the stress of leaving the relationship, Ms Walsh has developed a determination to keep herself and her daughter safe from intimidation and abuse in the future. She is unbending in her opinion that [X] would be at risk of both physical and emotional harm if left in the care of
Mr Walsh.
The mother further relies upon an updating affidavit filed on 2 January 2013. In that affidavit the mother sets out circumstances whereby she made observations as to sexually inappropriate behaviour by the child. The Court was informed during the interim hearing that that circumstance has been the subject of some investigation by the Department of Family and Community Services and the mother no longer holds any fears in relation to that circumstance.
However, her further affidavit filed on 2 January 2013 asserts incidents that are clearly indicative of the father enmeshing the child in the conflict between the mother and father and inappropriately engaging the child as a means of abuse and intimidation of the mother.
The allegations by the mother in that affidavit raise serious concerns in the mind of the Court as to the appropriateness of the father’s present time with the child.
The mother’s application is further supported by an affidavit by the maternal grandfather filed on 4 December 2012. He also gives evidence of the father’s abuse and intimidation of not only the mother but the child in circumstances during cohabitation, both in the months prior to separation and historically. The maternal grandfather provided a further affidavit filed on 2 January 2013 which evidences once again the father enmeshing the child in the conflict. The Court has further concerns as to the father’s present time with the child as a consequence of the matters raised by the maternal grandfather.
The concerns observed by the maternal grandfather during the parties’ relationship are echoed by the maternal grandmother in her affidavit filed on 4 December 2012 and her observations are supportive of the evidence given by the applicant mother in her affidavits.
The father in his affidavit filed on 3 December 2012 says that towards the end of their relationship he was working six days a week and also studying at TAFE two nights a week with the intention that would increase his earning capacity. He concedes he was in full time employment throughout the period of the relationship, taking two weeks leave after the birth of the child to remain home to assist the mother with the care of the child.
Otherwise, it seems uncontroverted that the mother has been overwhelmingly the primary carer for this young child.
The father says that on 18 August 2012 the police served him with the provisional apprehended domestic violence order referred to above and that matter was listed for hearing on 30 October 2012. The father somewhat tritely says that he successfully defended the AVO, although it is quite apparent that the issues for consideration by the local Court magistrate are completely different to the issues for consideration by the Court in the matter presently before it.
The father essentially in his affidavit denies the various allegations made by the mother in terms of his controlling abusive behaviour, both towards the mother and the child.
The father particularly denies the circumstances relating to the mother being cut by timber that required her to have plastic surgery to a cut on her face.
However, save for denials and taking issue with many of the allegations of the mother, the Court is left with, of course, the detailed allegations of the mother supported by her father and her mother as to the respondent’s conduct.
Objective Evidence
In terms of objective material the Court has before it documents produced on subpoena by Dr U of [address omitted]. The clinical notes from that doctor’s practice known as the [omitted] Clinic indicate that the mother attended Dr U on 13 November 2008 and gave a history of the father punching the wall in a fit of temper and, in so doing, dislodging a piece of timber which hit the mother under the eye requiring sutures.
This presentation to a medical practitioner so shortly after the alleged incident is supportive of the mother’s version of what transpired.
Otherwise, on 10 March 2009 the mother attended upon the doctor, asserting that she was very tired from work and that she could do with more help around the home from the father. Overall, the notes from
Dr U provide a summary which says as follows:
Ms Walsh has been on antidepressants for over two years now and has had no recurrence of anxiety and depression. The depression was very mild and she needed medication only for short periods of increased stress. Despite the dreadful stress she is experiencing with her marriage breakdown she has exhibited no adverse psychological symptoms and she has not required medication.
The date of that note is not identifiable in that subpoenaed material.
Otherwise Exhibit E before the Court is notes from Dr M from the [omitted] Medical Centre. Those notes which relate to the mother’s presentation at that surgery confirm that on 22 August 2012 a mental health plan was prepared by the doctor and the mother was referred to Ms R, psychologist, for assistance in matters arising from the breakdown of the relationship and the father’s behaviour during the relationship.
A copy of the mental health plan is part of the notes and the history of presenting problems defines anxiety and verbal abuse from the father as the cause of the referral. The doctor’s notes include a preliminary report from the psychologist, Ms R, addressed to Dr S dated 18 September 2012. The psychologist, Ms R, observes in that letter:
Ms Walsh feels frightened for her safety and states she worries about [X]’s safety if she were left alone with the father. Ms Walsh suspects that Mr Walsh has been using anabolic steroids for many years. She believes this explains his enormous mood swings and unpredictable behaviour. …..The mother completed various objective assessments indicating mild to moderate levels of depression…..These symptoms are not unusual under the circumstances.
The notes also include a report from Dr H, a senior staff specialist paediatrician, in relation to the child [X]. That is a report dated 3 April 2012. There are no concerning issues arising out of that report.
Further in evidence before the Court are documents produced on subpoena by the New South Wales Police Service. The police service COPS entries note an attendance on 18 August 2012, that being the date of separation. That COPS entry in terms of a prior history of violence, including stalking and intimidation, notes as follows:
“POI (that is the father) …has been controlling of the victim for the entire period of the relationship, controlling her work hours, who she has as friends, her internet access. The POI constantly intimidates the vic and makes her feel uncomfortable at home. The vic also states that the POI lets her go out with friends on occasions, however forbids her from talking about their problems at home. Their relationship has been under strain for some time as the vic states the POI often comes home from work and is aggressive, moody and cranky for no apparent reason, just saying things like, “Don’t fucking look at me.” The POI will often during heated arguments punch holes in the walls to the house or damage property belonging to the POI. The child is often a witness to these fights and the vic feels it is beginning to affect the child’s wellbeing.”
Those complaints made to the New South Wales Police Service are supportive of the mother’s assertions in relation to the nature of the domestic relationship between her and the father.
Family Consultant’s Memorandum
Also in evidence before the Court is the family consultant’s memorandum as Exhibit D. The issues remaining in dispute were identified by the family consultant as:
“(1) Whether the mother should have sole parental responsibility;
(2) How much time [X] spends with her father; and
(3) Whether time spent with the father should be supervised.”
Relevantly, family safety factors are identified as an allegation by the mother that the father has physically and psychologically been abusive to the child during the relationship, that the mother’s assertion that the father was psychologically abusive to her and threatened physical violence throughout the relationship and the mother’s allegation that the father may be using steroids, which the father denies. The family consultant notes that the father denies allegations of psychological abuse or physical threats towards the mother, the father alleging the mother has a history of depression and anxiety.
The family consultant interviews took place when the father had been having some time with the child pursuant to orders made on 5 December 2012. The family consultant observes:
“The father wants longer and more frequent time with the child, including overnights. The mother wants the current arrangements to remain and would prefer for contact to be supervised.”
Both parents stated they were unsure of the current relationship the child shares with the other parent as they have no communication or contact with each other.
The mother asserted that she is concerned for the child’s safety while in the father’s care due to allegedly witnessing physical and verbal abuse of the child by the father prior to separation. The mother alleged to the family consultant that following time spent with her father, the child has acted out violently, hitting and pushing, for approximately a half to one hour before settling. These assertions are supported by the mother’s supplementary affidavit material.
The family consultant observes that the child, due to her young age, is also very vulnerable to harm, would likely be unable to clearly express if she was being abused or to defend herself.
The Law
The law in relation to interim parenting is now well settled, and the nature of interim proceedings and the ability of the Court to make factual findings has been referred to by the Full Court in the decision of Marvel [2010] FamCA 101, where the Full Court observed:
“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. 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.”
The relevant principles relating to parenting and interim proceedings are set out in the Full Court decision of Goode [2006] FamCA 1346.
Section 60B outlines the objects and principles underlying Part VII of the legislation, and this Court is mindful of those objects and principles.
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.
Section 60CC then outlines the primary and additional considerations the Court is to take into account in determining what is in the best interests of the child.
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.
That presumption does not apply where there are reasonable grounds to believe a parent is engaged in abuse of the child or family violence – section 61DA(2) – or in interim proceedings where the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order - section 61DA(3).
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this triggers the operation of section 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.
In the circumstances of this case, and having regard to the reasons set out above, the Court is, firstly, satisfied that there are reasonable grounds to believe a parent is engaged in abuse of the child or family violence, that parent being the father. The Court is also satisfied that in the circumstances of this matter it is not appropriate in any event for the presumption to be applied.
Accordingly, the presumption set out in section 61DA is rebutted. In that circumstance, the orders to be made by the Court fall to be determined by reason of the best interest considerations set out in section 60CC.
The Court will, firstly, look at the additional considerations set out in section 60CC(3).
The first consideration is any views expressed by the child. In this matter, the child is of tender years and any views of the child, no matter how expressed, would be given little or no weight by the Court. Accordingly, this is not a relevant factor for the Court’s consideration.
The second factor is the nature of the relationship of the child with each of the child’s parents and other persons. There is no doubt that in the context of this matter the child has a strong, meaningful and well-developed attachment relationship with the mother as the child’s primary carer. In terms of the relationship with the father, it appears that the child’s relationship with the father can best be described as “problematic”. There is strong inference arising from the evidence that the child’s relationship with the father is overshadowed by the father’s behaviour both during the period of cohabitation and during the period of separation when the father has had the child by reason of orders made by consent on a very preliminary basis on 5 December 2012. The Court has grave reservations as to the nature of the relationship with the child and there is a strong inference that the relationship between the child and the father may well be overshadowed by the child’s fearfulness of the father and of his behaviour from time to time, the child being an observer of the most disturbing circumstances that have been in existence in the household of the father and the mother over a period of years since the child’s birth.
It appears that the child has a relationship with extended paternal family and extended maternal family, with the extended maternal family at this stage providing cooperative support for the mother and the child in the mother’s present circumstances. A consideration of this factor favours the mother’s application.
The next factor is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child. The separation of the parties is only recent, having occurred in August. The mother says that she received one payment of child support from the father and no other payment of support whatsoever. There is certainly no doubt that during cohabitation the father was the primary income earner for the household and was the main provider for the mother and child in terms of financial support. However, the father’s failure to provide ongoing support in financial terms since separation is of concern to the Court and favours the mother’s application in these proceedings.
The next factor is the likely effect of any changes in the child’s circumstances, including the likely effect of any separation of the child from either of the parents or any other significant person, including grandparents. It is common ground, of course, that the parties lived in the same household as the child prior to separation. Thereafter, the father has had limited time with the child by reason of orders made on 5 December 2012.
There are circumstances arising as a consequence of matters that have transpired since the making of those orders that give the Court grave concern should those orders continue in their present form. However, the child is young, and it is necessary to facilitate at least an ongoing connection with the father in terms of that relationship to maintain the child’s relationship. The Court is satisfied that it is appropriate to continue the child’s relationship with the father so that the impact of any orders to be made is diminished so that the relationship is able to continue. This factor favours the mother’s application and the overall circumstances favours a change in the present circumstances so as to introduce supervised time.
The next factor is the practical difficulty and expense of the child spending time with and communicating with the parent. In this circumstance, there are no practical difficulties. The parties live in reasonably close proximity and supervised arrangements are available to facilitate the father’s time with the child.
The next factor is the capacity of each of the child’s parents and any other parent, including grandparents, to provide for the needs of the child, including emotional and intellectual needs. Regrettably, both parents are subject to some criticism in relation to this factor. The mother was unable to extricate herself from a relationship which she perceived, and it appears, was a relationship involving verbal abuse and intimidatory conduct by the father over a period of years preceding, in fact, the birth of the child. However, the mother’s reluctance to separate from the father, of course, called her capacity in relation to providing for the needs of the child into question until such time as she was able to separate. She has now managed to extricate herself from that relationship and is currently residing, in a close and protective relationship, with the maternal grandfather. The Court is satisfied that ongoing the mother has an appropriate capacity to provide for the needs of the child, including the child’s emotional and intellectual needs, provided that her concern for the father’s conduct in relation to the child is addressed by Court orders.
In terms of the father’s capacity, the Court is, by reason of the matters set out above, completely unsatisfied that the father has an appropriate capacity to provide for the needs of the child, including the child’s emotional and intellectual needs. The evidence provided by the mother and her supporting witnesses, and available to the Court by way of objective evidence from the mother’s psychologist and subpoenaed material, clearly is indicative of the father embarking on a controlling, abusive and intimidatory relationship with the mother that has so enmeshed the child, that there is a real prospect that the child has suffered some psychological damage as a consequence. The Court is satisfied that the father would only have such capacity in relation to the child provided that his time with the child is appropriately supervised in the immediate future.
The next factor is the maturity, sex, lifestyle and background of the child. The child is of tender years, and the child’s background is that the child has now been extricated from a relationship which, it is alleged, has been abusive and intimidatory over a period of time. This factor itself favours the mother’s application.
Consideration (h) is not relevant.
The next consideration is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. Much of the matters referred to above in this, the Court’s reasons for judgment, touch upon this factor. Now that the mother has extricated herself from the relationship, then what clearly was prior to separation a difficult circumstance for her that reflected an inappropriate inability to adopt a proper attitude to the child and her responsibilities of parenthood has been resolved. Her present circumstances reflect an appropriate circumstance for the child, and in that regard the Court is satisfied that she now has an appropriate attitude to the child and her responsibilities of parenthood.
Having said that, the same comment cannot, by any stretch of the imagination, be made in relation to the father. His behaviour as alleged during the relationship and thereafter is of grave concern to the Court and the Court cannot be satisfied that the father is capable of so conducting himself so as to evidence a proper attitude to the child and his responsibilities of parenthood. This factor favours the mother’s application.
The next factor is any family violence involving the child or a member of the child’s family. The Court has set out above the circumstances touching upon family violence in the household at the hands of the father. The nature and extent of that violence in the end will be subject of a final hearing, but the Court is concerned that there is an overwhelming overshadowing of violence at the hands of the father in the household, both prior to separation and thereafter. This factor favours the mother’s application.
A family violence order has been made, and that was on an interim ex parte basis. It is common ground that that order was refused at a final hearing. However, of course, the statutory considerations of a magistrate pursuant to the relevant provisions of the New South Wales Crimes Act are different to the considerations for the Court exercising jurisdiction under Part VII of this legislation. The Court draws no adverse inference as against the mother as a consequence of the dismissal of the apprehended domestic violence order.
The Court is next required to determine whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings. These are interim proceedings. It is common ground that it is appropriate for an independent children’s lawyer to be appointed and for that independent children’s lawyer to have some input into the nature of a single expert report to be obtained in relation to this fractured household and relationships.
There is no other fact or circumstance that the Court considers to be relevant.
The Court now turns to look at the primary considerations set out in section 60CC(2) of the legislation.
The first, of course, is the benefit to the child of having a meaningful relationship with both of the child’s parents. That meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520, and a meaningful relationship was said to be one which is important, significant and valuable to the child. It is a qualitative adjective, and not a strictly quantitative one. The observations by his Honour were supported by the Full Court in the subsequent decision of McCall & Clark.
The child has, in the child’s present circumstances, a meaningful relationship in terms of that relationship being important, significant and valuable in the primary care of the mother. It is important that that primary care not be disturbed and that the mother is able to continue that relationship having knowledge that her protective concerns in relation to the child are appropriately addressed.
In terms of the child’s present relationship with the father, the Court has made significant observations above in relation to the father’s conduct and the various concerns evidenced by the supporting witnesses relied upon by the mother and the other objective material before the Court. The present relationship between the father and the child appears to be overshadowed by the father’s intention to enmesh the child in the conflict between him and the mother and to undermine the child’s relationship with not only the mother, but also the extended maternal family. That cannot be seen to be a relationship which is important, significant and valuable to the child.
Accordingly, a consideration of this factor is indicative of there being a need to have the father’s relationship with the child carefully monitored.
The next factor, of course, is the need to protect the child, and the need to protect the child is set out under section 60CC (3)(b). By reason of the more recent amendments to the legislation, section 60CC (2A) was inserted into the legislation which gives this consideration greater weight in considering the primary considerations under section 60CC(2). The Court is required to consider the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. This is an overwhelming consideration in the context of the Court’s determination as to appropriate orders to be made.
The circumstances in which the child finds herself as a consequence of the father’s alleged behaviour during the cohabitation and thereafter are overwhelmingly disturbing and could only be seen as psychological abuse, if not physical abuse, at the hands of the father.
Accordingly, this protective concern and the primacy given to this concern by reason of the provision of section 60CC(2A) cause the Court to consider that the child’s relationship with the father must continue only under strict protective considerations.
Having regard to all of the matters referred to above, the Court makes the following orders.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Foster FM
Associate:
Date: 6 February 2013
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