Warren and Peat

[2017] FCCA 664

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARREN & PEAT [2017] FCCA 664

Catchwords:
FAMILY LAW – Parenting – application for recovery order refused – child to remain living with father.

Legislation:

Family Law Act 1975, ss.60CC, 68Q

Cases cited:
Goode v Goode (2006) 36 Fam LR 422

Applicant: MS WARREN

Respondent: MR PEAT

File Number: LEC 70 of 2017

Judgment of: Judge Jarrett

Hearing date: 23 February 2017

Date of Last Submission: 23 February 2017

Delivered at: Lismore

Delivered on: 23 February 2017

REPRESENTATION

Solicitors for the Applicant: Paul Denmeade

Solicitors for the Respondent: McVittie Legal

ORDERS

UNTIL FURTHER ORDER:

1. The child X (“the child”) born (omitted) 2016 live with her father MR PEAT.

2. The child spend time with her mother MS WARREN at all times as agreed by the parties and failing agreement between 12:00pm and 2:00pm every Monday, Wednesday and Friday.

3. For the purpose of facilitating time with the child handovers take place at the (omitted) Library.

4. Upon the parties exchanging the child, the father must vacate the immediate area and must not spend time with the mother or the child where the mother is spending time with the child.

5. The mother in restrained from bringing the child into contact with the maternal grandmother MS L or the mother’s siblings.

6. Within twenty-four (24) hours of the date of this order, the mother submit to a urinalysis test for cannabis or any other illicit drug and that the testing be carried out in accordance with the Australian standards adopted in New South Wales for such testing.

7. Upon the results of the urine test being made available to the mother, the results be forwarded to the solicitors for the father.

THE COURT FURTHER ORDERS:

1. The child be represented in these proceedings and it is requested that or Legal Aid Commission NSW arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Lismore.

2. The Independent Children’s Lawyer organise a Family Report forthwith.

3. The application be adjourned to 19 June 2017 at 9:30am for further directions in the Federal Circuit Court of Australia sitting at Lismore.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LISMORE

LEC 70 of 2017

MS WARREN

Applicant

And

MR PEAT

Respondent

REASONS FOR JUDGMENT

1. This is an application for interim parenting orders in respect of one child, X, who is nine months of age or thereabouts.  Presently, she is living with her father and she has been in his care since earlier this year. 

2. This application needs to be decided according to principle.  The principles are set out in the Family Law Act1975 and in the decisions that have been made by the Full Court concerning those provisions.  The most instructive decision is Goode & Goode (2006) 36 Fam LR 422. It is particularly apposite in this case because in Goode & Goode the Full Court points out that whilst the Court has to step through the statutory structure established by Part VII of the Family Law Act, even in interim cases like this, sometimes it is difficult to do so because the evidence before the Court is less than fulsome and it generally exposes significant disputes between the parties that are incapable of resolution on an interim application.

3. There is no cross-examination, as the solicitor for the mother has pointed out.  And in Goode & Goode, the Full Court said that it is generally impossible and almost always inappropriate to attempt to make a determination of disputes of fact on an interim basis.  The Court does not have the forensic advantage available to it of the trial process. 

4. Reading the two affidavits in this case it is difficult to imagine a case where there are more disputes between the parties about the nature and extent of their relationship and what happened during it.

5. The mother’s case, without wishing to do it an injustice by reducing it to a few lines, could be summarised as her relationship with the father has always been problematical, he is a violent man such that she was exposed to domestic violence in the form of physical attacks and verbal aggression.  So, too, were members of her family and so, too have the two children.  She has another child, A.  A is a little older than X and his father is not a respondent before the proceedings before the Court.  But her case is that he has been violent to both of them as well and she has been put upon by him in a number of ways which, over the course of time, have caused her to act in ways that are inconsistent with her own interests and the best interests of her children – X in particular.

6. The father’s case, without trying to do it any injustice, might be summarised as almost the opposite.  On his case, it is the mother and her family – her mother, in particular – who are violent and who have, over the course of his relationship with the mother, caused there to be great friction between he and the mother.  He says that the mother and her own family do not get on and that, too, has been a source of friction and risk for her children.  He says that he has always acted in a protective way, been there to care for the children when it has been necessary to do so, and that his care of the children has facilitated the mother’s lifestyle which includes episodic drug-taking, absenting herself from the family home for days on end, and trying to lead the lifestyle of a single person.

7. He says that it has been him, really, who has been responsible for caring for these children from time to time, that he has taken on the role of primary caregiver in the sense that he has ensured that their medical needs are met.  And he gives evidence in his affidavit of all of the things that he has done to care for X. 

8. The objective evidence before the Court about these matters is thin on the ground.  It is clear that there is a temporary protection order in place that was made in the Magistrates Court at Southport, I think, in December of last year.

9. The father has been charged with something.  It is not clear exactly what, although on his undertaking as to bail, which is exhibit 2 in these proceedings, there are a number of offences set out: one of common assault; a domestic violence offence; another one of contravention of a domestic violence order; another one, common assault; a domestic violence offence; and a contravention of a domestic violence order.  The father gives evidence in his affidavit concerning the circumstances in which the protection order came to be in place, and the circumstances in which he has engaged, in various fashions, with the police, particularly in Queensland.

10. His case is, essentially, that whilst there have been protection orders in place and the police have been called from time to time, that has been used as an artifice by the mother for her own benefit when it has suited her and perhaps, even more so her family.  His case seems to be that whilst he may have technically breached the protection orders, he has done so at the invitation of the mother and in answer to requests from her to meet with him or to attend upon her.  The instance of when she was in hospital provides a good example, and his evidence demonstrates that there was much communication between them so that he might visit her and, at the same time, avoid her mother – that is, the maternal grandmother – who seems to cause trouble between the parties on the father’s evidence.

11. It is necessary to reflect for a moment on the nature of the evidence by each party.  The mother’s affidavit material, it was said, was prepared urgently.  That may be so, but it is of a generalised nature.  There are some, what might be described as particulars but by and large, her evidence is couched in terms of conclusions and opinions and the like.  There are some statements of fact.  On the other hand, the father’s affidavit material is far more explicit.  It reads a little bit like a police statement, as it ought, and it has the feel of something which is much more reliable.  I do not make any findings about any of that, but it is an impression that I have gained from reading the material. 

12. I was talking about the objective evidence.  There are some transcripts of text messages and telephone calls between the parties.  They are illuminating.  The first tranche took place on 21 September last year.  The father says that following an altercation between he and the mother, he was to take the children, X and A, home – the mother was at a friend’s house – and there had been a physical altercation between them.  She had, according to the father at least, caused him significant physical pain and distress.

13. He was going into the house, according to his evidence, and he dropped X.  Rather than not telling the mother anything about it, immediately he told her about it and asked what to do.  The mother told him to take her to the hospital.  Thereafter continued a number of text messages.  The father did take X to seek medical treatment but, apparently, the communication between the parties was insufficient for the mother’s purposes and she became anxious about what had occurred.

14. The text messages tend to show that the father was concerned enough to do something about what had happened with X, but the mother was with her friend apparently, according to the father’s evidence, watching a movie.  And whilst she was communicating by text message, that was about it.  She seemed content to let the father attend to the situation. 

15. Another curiosity of the case is that in support of maybe the application for a protection order, maybe one of the criminal offences, it is not at all clear on the evidence – I think it’s the protection order but it does not matter – the mother gave a statement to the police.

16. The statement was given on 22 September 2016 and in that statement she gives evidence about interactions between she and the father.  Subsequently, on 4 October, 2016 she signed an affidavit.  It is worth noting that the police statement was made under the Oaths Act.  The affidavit was also sworn. 

17. In the affidavit, she says that when she was asked to sign the statement by the police she was still in hospital.  They came and woke her at 4.30 in the morning and asked her to sign the statement.  She read it, but she says that she was in a “sleep deprived state”.  I'm not sure why she was sleep deprived.  She was in hospital and she says that she was asleep but anyway, there it is.  She says she:

    ...only skimmed the document before signing it.  I advised that I couldn't really see but that I would sign it anyway. 

    She claims that the police officer acknowledged her statement, but nothing appears on the statement to that effect.  She now says in her affidavit that since reviewing the police statement, she thinks that a large portion of the information is incorrect.  And, curiously again, she says:

    These incorrect statements include but are not limited to...

    and then she sets out items (a) through to (h). 

18. I think it is tolerably clear that what she means by that affidavit is that what is set out in each of those items is incorrect.  But according to her own affidavit, they are not the only things in the police statement that are incorrect.  There are other things, otherwise she would not have used the phrase “including but not limited to”.  So the police statement is inaccurate and, perhaps, inaccurate in significant respects.  That is some evidence which calls into question the veracity of the mother’s evidence generally.

19. There was a complaint made to the Department of Child Safety, or the Department of Communities, Child Safety and Disability Services in Queensland, about the father’s conduct towards X that was investigated by the department and found to be unsubstantiated.  The interesting part about that is that according to even the mother’s evidence, the bruise or the bump on X’s head, which seemed to be the thing that was investigated by the department, was caused by the mother, not by Mr Peat, the father.

20. From the mother’s own evidence, she was closing a glass sliding door, it seems and did not notice that the father had placed the child in his outstretched arms towards her and she hit the child on the head with the door.  But, nonetheless, the father was investigated and it was found that the complaint was unsubstantiated. 

21. There is another series of text messages in the father’s affidavit material, dated 3 November.  It was not suggested that these were not legitimate text messages passing between the mother and her sister, Ms T.

22. The text messages indicate that the mother was meeting up with her sister at premises described in the text messages as “(omitted)”.  The children were somewhere else.  They were at a person described as “(omitted)’s” and they were, apparently, asleep there.  The mother determined to leave the children there and meet with her sister.  Both thought it was funny according to the text messages.  And then there is a series of text messages about how long it would take the mother to meet up with her sister.

23. One of the text messages is suggestive of the parties’ engaging in drug‑taking.  There is a message from the mother, on the 3rd of the 11th at 12.52pm, to this effect, “Can he get on?”  That follows a message about a person called (omitted).  Her sister replies, “Yes, I think.”  The mother then replies, “Okay!!!” and some of what the young people these days call an emoji, and thereafter some more conversation.  I don’t make a finding that that’s about illicit drug procurement and then usage but, it certainly looks like it.  That is consistent with the father’s clams that the mother is more interested in pursuing a single person’s lifestyle.

24. There is then some other objective evidence.  The Queensland Government and, in particular, the Queensland Health Department tries to ensure that parents look after their children by taking them to appropriate medical appointments.  There are a series of letters, one addressed to the child in this case, X, and the other to the child, A, about missing medical appointments that had been organised with Queensland Health.  Those letters demonstrate that in respect of each child, appointments were missed on at least two occasions, and the children were taken out of the relevant health care appointment systems.

25. The father has engaged with an organisation called (omitted).  There is a letter in his material, dated 20 February 2017 from Ms M.  She is described as a child and family worker, Family Connections, (omitted) in (omitted).  The letter is important, I think, for a number of reasons which I will explain, but the text of the letter is as follows:

    Family Connections provides case management support to families where one parent is under 25 years of age.  Parents are supported to strengthen relationships between them and their children, and encourage early childhood development while meeting their own life goals.  Support provided is ongoing and voluntary.  Mr Peat was referred to the program by the Family Referral Service on 25 January 2017.  The referral sought support for Mr Peat around parenting while navigating what was described as a difficult relationship with the children’s mother, Ms Warren, and her mother, the children’s maternal grandmother, Ms L. 

    The referral stated Mr Peat had sporadic contact with his children.  At the time, Ms Warren and the children were residing with Ms L.  The referral stated Mr Peat had concerns around the children’s safety and wellbeing while they are in Ms L’s care.  Mr Peat had consistently engaged with the Family Connections program, and has been observed to make attempts to support Ms Warren to engage in this support. 

    Ms Warren and Mr Peat both attended my office on 2 February 2017.  The meeting lasted almost two hours.  Ms Warren had agreed to return to my office the following day to begin engaging in case management support, but did not attend.  Mr Peat is engaging well in the family connection program, and each time I have seen him in person, he has had X in his care.  I have observed Mr Peat to interact appropriately with his daughter.  He responds to her needs with attentive care.  I have not observed anything to cause concern for his care of the children.

26. The concluding paragraph of that letter is consistent with the evidence that the father gives about it being he who has attended, largely, to X’s care. 

27. The father gives evidence that on 31 January 2017, the mother went out clubbing to a place in (omitted).  He says that she left the children with him but before she left, they had a discussion about the children and the mother told him that he should have the children.  He says that, of her own volition, she wrote out and signed a statement saying that she gave custody of the children to him.  The document that he says she wrote out and signed is appended to his affidavit.

28. It says:

    I, Ms Warren, give Mr Peat 100 per cent custody of both children, named A and X, as of 31 January 2017.

    It was not suggested that the mother did not sign the document or write it out, as is alleged, but it was said that she was forced to.  I can make no finding about that, of course, but there is very little by way of evidence to support the assertion that she was forced to sign the document.

29. Finally, in respect of the engagement of the mother with support services, there is a text message from the mother to a person called Ms B which says this:

    Hi Ms B, sorry I didn't get back to you yesterday.  I had my phone in my bag.  I no longer need your services as they seem to be making my life harder.  I just want to live a normal life far from here with my two children.  I am more than capable of achieving that.  My mother plays a massive role in why I'm in the situation I am, and I do not plan to be here with her much longer.  It's harder living with her than Mr Peat.  Mum was right when she said I hold back, but the only thing I have held back on is how much I struggle to be around her.  I am deteriorating here with her so my focus is on finding my own place.  Sorry for wasting your time.  I am very grateful for the help and support you have given.  Thank you.  Ms Warren.

30. It is clear from that text message that the mother was not engaging in any support services to which she had been referred.  It is also clear from that that she did not see that her future involved anybody other than she and her two children.  She speaks nothing of the fathers of those children and the importance of those people to the children. 

31. Again, I make no findings about any of these things, but it is relevant to point out that insofar as the father alleges that the mother is a habitual user of cannabis, and has enjoyed a lifestyle centred around using cannabis, she denies that.  The first denial might be found in paragraph 102 of her affidavit.  It seems that she saw the allegation coming.  She says:

    Although Mr Peat has accused me of using drugs in the text messages, this is completely untrue.  I do not use or take any drugs and I rarely drink.  However, I do smoke cigarettes.  I did experiment with cannabis as a teenager, but have not used it for many years.

32. The text message to which the mother is referring are those at annexure D to her affidavit.  In particular, there is a text message at 8.53am on 15 February, 2017 from the father to the mother in these terms:

    Ms Warren, I’m not just dropping her off.  You need to build the trust first.  If you will do anything for her, stop the drugs and get your life together.  I'm so upset you’ve turned your life into this and you’ve become this person.  I’ve even tried to get family support and you didn’t want to engage with them.

33. The response is in these terms at line 21:

    Yes, I did.  I've never not wanted to engage with them??  I will message you when I'm done here.

    Significantly, in my view, there is no denial of the assertion of drug use.  There is nothing, for example, to the effect of, “Drugs?  What are you talking about?  I do not use drugs as you well know.”  The silence on that matter seems to be accepting of the allegation.

1. The question of drugs was again raised in the text message from the father to the mother at 9.26am on the same day but, again, there is no response to that assertion. 

2. Inconsistently with what she swears in her affidavit, the mother instructed her solicitor this afternoon before me to tell me that she has used cannabis in the past but ceased sometime ago last year and that she used the drug “socially”.  That is inconsistent entirely with what is in paragraph 102 of her affidavit.  That is something which I consider to be significant.

3. There are some allegations in the mother’s affidavit material that strain credulity.  She asserts that she was held hostage by the father at his parents’ place at (omitted) at the beginning of 2017.  The relevant paragraphs appear in her affidavit under the heading “Withholding”.  She says that she went to stay with the father at his parents’ house overnight, but then he would not let her leave with X.  She says she was, effectively, held hostage.  Then she says that his parents run a (business omitted) and they are “hardly ever there”.  He apparently also has a sister who lives in the same place according to earlier aspects of her affidavit.

4. She claims that she did not have a telephone as it had been smashed.  That is, seemingly, inconsistent with the text messages that appear as annexure D to her affidavit.  She either had a phone on which she could send text messages or she did not.  She says that the father kept watching her, but then:

   I couldn't take it any longer, so I decided to leave.  I organised to go and see a friend, Ms G, at (omitted).  Mr Peat allowed me to do that but without X or A.

   So, far from the mother being a hostage, she was able to organise to leave when she decided to do so.  The hyperbole in her affidavit does her no benefit.

5. When a court makes an order under the Family Law Act for parenting of a child, it must do so having regard to the best interests of that child or children. The best interests of the child or children concerned are the paramount consideration. What is in a child’s best interests is determined by reference to the matters set out in s.60CC of the Act. On an application like this, where the evidence is less than fulsome and largely in conflict, an examination of the relevant s.60CC factors can only happen on a cursory level.

6. Neither party addressed me in terms of the matters raised for consideration under s.60CC of the Act so I will have to do the best I can. 

7. Neither party suggested that X will not benefit from a meaningful relationship with each of her parents, although it may be the case that the mother suggests that she will not, given the orders she seeks on a final basis.  It is hard to tell. 

8. The mother’s case seems to be that X is at an unacceptable risk of physical or, perhaps, emotional risk by reason of being exposed to abuse, neglect or family violence in the father’s care.

9. I am not satisfied, on the evidence, that that is so.  Indeed, if I was required to make a determination about that, I would determine it the other way round.  It would seem to me that there is real reason to be concerned about X in the mother’s care, and the fact that she might, in her care, be exposed to either neglect or family violence. 

10. There is, given X’s age, no question of her views. 

11. It was said in submissions that the mother was the primary carer of X, but that depends on whose evidence you accept.  And I cannot accept one party’s assertion about that matter over the other because the evidence is in so much conflict.  What is clear, however I think, even on the mother’s material, is that X has been cared for by both of her parents from time to time.  She clearly knows each of them.  Neither party is suggesting to the contrary.  She has clearly spent significant amounts of time with each of them.  She must be used to being cared for by each of them. 

12. There is no evidence before me about the effect of a change in the current arrangements on X. 

13. There is reason to be concerned about the parenting capacity of each of these parents, depending upon the version of events that are accepted.

14. If one accepts the mother’s affidavit without question, then one would have reason to be concerned about the father’s capacity to meet the physical and emotional needs of X if she remained in his care.  If one accepted the evidence of the father, one would be equally concerned about the mother’s ability and dedication to the child.  I have referred already to the objective evidence.  The objective evidence tends to suggest that it is the father who is likely to be more attentive to the physical and emotional needs of X rather than the mother.

15. There is a temporary protection order in place.  I take that into account.  I make no findings about the basis for the making of the temporary protection order.  I certainly make no observations about the offences with which the father has been charged, only to note that, there is little by way of particularity about those matters and, of course, he is innocent until found guilty. 

16. The mother seeks the issue of a recovery order and an order that X live with her.  I intend to refuse that application.  X should remain living with her father.  There is nothing in the material that would suggest that she was at an unacceptable risk of harm in his care, or that her best interests would be promoted by living with her mother at the present time.

17. She should, of course, spend significant time with her mother.  She is at an age where developmentally, she needs to spend regular and frequent time with each of her parents.  Cognitively, her development is such, no doubt, that she has no capacity for memory.  In those circumstances, the orders that the father seeks – short periods of regular and frequent time, Mondays, Wednesdays and Fridays for two hours at a time - are appropriate.  That takes into account, no doubt, her need for sleeping during the day.

18. I am conscious that the orders that I intend to make in these proceedings are inconsistent with the temporary protection order.  Pursuant to s.68Q, to the extent to which the orders I have now pronounced, or am about to pronounce, are inconsistent with the temporary protection order, I note that pursuant to s.68Q(1) of the Family Law Act 1975, that protection order is invalid. 

[ORDERS DELIVERED]

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 February 2017.

Date: 5 April, 2017