WEST & WEST

[2015] FCCA 336

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEST & WEST [2015] FCCA 336

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged five years – significant allegations of family violence – police involvement – domestic violence orders granted – nature of interim hearing – consideration of s.60CC factors – best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60CA, 60CC, 61DA, 62G(2)

Family Law (Fees) Regulation 2012
Federal Circuit Court of Australia Act1999, s.26
Federal Circuit Court Rules

T & N (2003) FLC 93-172

Applicant: MS WEST

Respondent: MR WEST

File Number: ADC 4465 of 2014

Judgment of: Judge Brown

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Adelaide

Delivered on: 18 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Hemsley

Solicitors for the Applicant: SE Lawyers

Counsel for the Respondent: Ms Bosko

Solicitors for the Respondent: All Family Law

Solicitors for the Independent Children’s Lawyer: Mr Stephen

Counsel for the Independent Children’s Lawyer: Legal Services Commission

ORDERS

1. This matter be listed for final hearing before Judge Brown on 7, 8 and 9 September 2015 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.

2. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 29 May 2015.

3. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

4. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

5. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

6. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

1. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 6 May 2015 at 11:00am.

3. Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $370 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

4. Should the Applicant fail to comply with Order 9 herein the conciliation conference is to be vacated and the matter is to be listed for mention before the Court.

5. No later than 21 days prior to the conference the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

6. Until further or other order the orders made on 5 December 2014 continue.

7. Further consideration of the matter is adjourned to 12 June 2015 at 9:30am for trial directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4465 of 2014

MS WEST

Applicant

And

MR WEST

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to serious issues of family violence and drug abuse, which arise at an early and interim stage and affect the best interests of a little girl aged five.  Ms West “the mother” and Mr West “the father” are the parents of [X] born [omitted] 2009. 

2. At present, [X] is living with her mother, at a secret location in Adelaide.  She has not seen her father, since 28 November 2014, when there was a violent altercation between her parents.

3. The mother commenced these proceedings on 4 December 2014.  Due to what had happened to her on 28 November, she successfully sought an urgent hearing of her application.  She wished the court to make an ex-parte order to enable [X] to continue to live with her. 

4. In addition, she wished the court to confer sole parental responsibility, for [X], on her and that the father be restrained from coming within three hundred metres of any place of residence of the child or any child care centre or pre-school, which she might be attending.

5. The mother’s affidavit material had been hastily prepared, but it was alarming.  She alleged that the father had attended her home, on 28 November 2014, and keyed her car, kicked in all of its four doors and done other damage to it, before ramming it with his own vehicle.  This was in spite of the fact that, earlier in 2014, the father had been restrained, by means of a domestic violence order, from approaching the mother or her home. 

6. It was Ms West’s evidence that [X] was with her at the time of the damage to her car.  Ms West was frightened and concerned about her own safety and that of [X].  As a consequence, the mother and [X] had gone into hiding. 

7. The issue to be resolved by the court, at this stage, is what time [X] should spend with her father, given the mother’s concerns, which are supported by the fact that Mr West has been charged with a number of criminal offences.

Background

1. There is no dispute between the parties that they have known each other since around 2000.  Between 2004 and 2010 they lived in Darwin, where each had good jobs and were able to save significant sums.  They married in [omitted] 2010.  They disagree about the date of their final separation.  [X] is the parties’ only child. 

2. It is the mother’s position that the father was regularly violent towards her during the course of their relationship. She also asserts that he exerted various forms of control over her, including withholding financial support. As a consequence of these behaviours, it is

   
   

   Ms West’s position that she frequently felt intimidated by Mr West. 

3. In her original affidavit, Ms West alluded to an earlier assault, perpetrated upon her by the father, which she alleged had occurred on 30 January 2014, at her home.  From the wife’s perspective, this incident occurred after the parties had separated.

4. On 30 January 2014, the mother alleged that she had been at home, socialising with a male friend in her kitchen, when the father arrived unannounced armed with an axe-handle.  The father is alleged to have referred to the mother as a “slut” and “threatened to get her”.

5. The mother deposes that she was frightened and ran away, after which the father punched her in the head, causing her to lose consciousness, but only momentarily.  Thereafter, the mother observed the father grappling with her male friend.  She was able to call the police.  The father left the premises. 

6. After the police had departed, the father returned to the premises and allegedly threw a rock against the backdoor.  [X], on the mother’s case, was aware of what had happened and was extremely distressed by it to such an extent that she vomited. 

7. It is the mother’s evidence that this incident led the police to charge the father with a number of offences, including assault and trespass.  It was at this stage that she also sought the protection of a domestic violence order.

8. Some controversy arises as to how the criminal charges against

   
   

   Mr West were resolved.  The mother asserts that Mr West pleaded guilty and was sentenced to three months imprisonment, following the refusal of bail to him. 

9. The father agrees that he was not granted bail at first instance but was able to obtain bail, from the Supreme Court, sometime in March of 2014.  He denies that he pleaded guilty to any charges but maintained a plea of not guilty throughout.  Ultimately Mr West asserts that the charges were dismissed because the mother did not wish to proceed with them. 

10. Given the seriousness of the mother’s various allegations, which included the following:

    ·that the father was regularly verbally abusive towards her;

    ·that the father had followed her;

    ·that the father had kept her socially isolated and withheld money from her;

    ·that the father had regularly kicked and punched her;

    ·that the husband had regularly destroyed her possessions, including burning her clothes and smashing items of her jewellery and several mobile phones; and

    ·that the husband had damaged several motor vehicles owned by her, including destroying one through arson;

    I was sufficiently concerned about the matter, in December of last year, to have it listed urgently, the day following its filing.  I was also satisfied that it was appropriate to proceed on an ex parte basis. 

11. Accordingly, on 5 December 2014, the following orders were made:

    “The child [X] born [omitted] 2009 live with the wife.

    Pursuant to section 68B of the Family Law Act 1975 an injunction issues for the personal protection of the wife and aforesaid child and to this end:

    the husband is restrained from approaching or coming within the vicinity of 300 metres of any place of residence where the wife or child may be living from time to time; or

    any place of education, kindergarten or day care where the child may attend from time to time.

    IT BEING NOTED that this is an order which pursuant to section 68C of the Act authorise any police officer to arrest the respondent without a warrant if that police officer believes the respondent has breached this order in any particular.

    A copy of the orders made today are to be personally served on the respondent as soon as is practical.

    The respondent file and serve a Response and Affidavit in support and a statement of his financial circumstances within 28 days of today’s date.

    Further consideration of the matter is adjourned to 23 January 2015 at 9:30am.”

12. Although I appreciate that the mother’s original application and affidavit necessarily must have been hastily prepared, there were some significant omissions from this material.  The most significant of which was that Ms West did not depose that Mr West had a significant history of amphetamine use, as had she.

13. The father has a very different view of the nature of the parties’ relationship with one another and of his relationship with [X].  He does however admit that he has been charged with a number of offences following the incident of 28 November. 

14. These offences include breaching an intervention order; property damage; and driving whilst disqualified.  He has been granted bail, a condition of which is that he lives with his sister. 

15. The father’s position is that the parties have had a turbulent relationship with one another, as a consequence of their mutual use of amphetamines.  During their periods of separation, which he says have been numerous, Mr West asserts that there has been a shared care arrangement for [X], who has a close relationship with him. 

16. In this context, in his response filed on 5 January 2015, Mr West seeks orders, on both a final and interim basis, that [X] live predominantly with him and spend time with her mother at times to be agreed between the parties and subject to Ms West having a “positive report from DASSA and negative urine screen tests for illicit drugs”.  

17. Mr West has now changed solicitors.  As I understand matters, he now appreciates that the court is unlikely to make the orders, which he seeks at this stage, given the significant allegations of family violence made against him, which are supported by criminal charges.  Accordingly, Mr West currently seeks to spend periods of day time, with [X], which he proposes be subject to the supervision of his sister, Ms C.

18. Prior to changing solicitors, Mr West deposed an extensive affidavit, in which he answered many of the allegations raised by Ms West, who clearly and unambiguously has asserted that she was the victim of the father’s consistently violent behaviour, towards her, during their relationship.

19. In essence, although it is not put in such terms, Mr West denies allegations of coercive and controlling violence on his part.  Rather he asserts that he has behaved poorly, on occasions, in reaction to what were difficult emotional circumstances, as a consequence of his turbulent relationship with Ms West. 

20. In my view, at this stage, it is difficult to glean a clear narrative of events from the parties’ respective affidavits, each of which has clearly been hastily prepared and not, as yet, been subject to testing through cross-examination. 

21. The husband has adopted the common approach of answering each paragraph of the wife’s affidavit consecutively.  The difficulty with this approach is that his case does not contain a clear narrative of what has occurred from his perspective.  It is reactive rather than proactive in its structure.

22. However, the husband does acknowledge that his behaviour, from time to time, has not been beyond criticism.  He makes the following acknowledgements of violent behaviour:

    ·in respect of the most recent incident of conflict (28.11.14), he admits damaging the wife’s car but denies deliberately ramming it with his own;

    ·in response to the wife’s allegation that he regularly destroyed her belongings, he deposes as follows:  “I admit that I trashed the house because the wife was lying to me and I was upset because I knew she was sleeping around and still using illicit drugs.”[1]

    ·he acknowledges throwing the wife’s belongings into the street, whilst abusing her, but asserts that he did so only because of her “drug use and constant disappearances”. 

    ·in respect of the incident of 30 January 2014, the husband asserts that he had been invited to the wife’s home, so that the two could use methamphetamines together, whilst [X] was asleep.  He denies throwing a brick through the backdoor and asserts [X] only became upset because the wife was hysterical and [X] herself was distressed, when she observed her father being arrested.

    [1]  See husband’s affidavit filed 5 January 2015 at paragraph 22

23. The father’s case is posited on the basis that it is the mother, rather than he, who has been the more volatile and drug affected.  He asserts that she has been out of control, since the parties returned to Adelaide, from Darwin.  He justifies his behaviour on the basis of allegedly provocative conduct on the part of the mother.

24. Between the time of their return to Adelaide and early 2014, he asserts that the parties have separated on at least seven occasions and during each such period, the mother has left [X] in his care, whilst she disappeared to sell drugs and have extra-marital affairs.

25. He acknowledges that he has sold marital assets, including a piece of land at [omitted], to fund drug purchases.  However, it is his case that both parties have had a significant drug addiction, which commenced when they first met and only abated during the period they were living in Darwin.  On the parties’ return to Adelaide, he asserts that each of them had a $1,100.00 a day habit. 

26. I was well aware, on 5 December, that it is a significant thing to grant any order, in respect of a child, in favour of one parent, in the absence of the other parent concerned.  However, given the serious allegations of violence raised by the mother, I was prepared to make the orders, which she sought.  However, I listed the application in the early New Year, so that Mr West might respond. 

27. As indicated above, it is the father’s position that the mother has significant deficits in regards to her parenting of [X].  In this context, he was critical that the mother had not been completely frank, with the court, in her initiating affidavit, which contained no reference to the parties’ mutual amphetamine addiction. 

28. For obvious reasons, following the receipt of Mr West’s affidavit, I was gravely concerned about [X]’s circumstances, given the polarised positions of the parties.  It seemed to me to be probable that [X]’s care had been unstable for some time and she herself had almost certainly been exposed to family violence. 

29. In these difficult circumstances, I determined that I was duty bound to obtain whatever objective evidence was available to ascertain the parties’ current drug use.  Accordingly, on 23 January 2015, I ordered both parties to undergo a supervised drug screen test, no later than 5:00pm that day. 

30. I also decided that it was appropriate that [X] be represented, in these proceedings, independently of her parents.  I am grateful to the Director of the Legal Services Commission of South Australia that a lawyer has been quickly appointed for [X], pursuant to my order.  The Independent Children’s Lawyer is Mr Stephen, an experienced Adelaide family lawyer. 

31. On 23 January 2015, I also ordered that both parties enrol at the [C] Children’s Contact Centre to ascertain their suitability to take part in the supervised contact program offered by the centre.  It is well known that there is a significant waiting list for families in the Adelaide area to access professionally supervised contact visits. 

32. The matter returned to court on 6 February 2015.  In the intervening period, each party has filed further affidavit material and each had undergone at least one supervised drug screen test. 

33. Ms West’s sample, for the urine drug screen test, was described as being “normal in appearance” and no illicit substances were detected, although the urine provided was described as being dilute.  The mother has not undergone any further drug testing.

34. The father’s urine sample, taken on 23 January 2015, was also described as being dilute.  Amphetamine and methamphetamine were detected in his sample.  It was recommended that a further test be undertaken.  In a second test, undertaken on 3 February 2015, no illicit drugs were detected. 

35. In an affidavit filed on 22 January 2015, the mother has responded to the father’s allegations regarding her drug use during the parties’ relationship.  Ms West deposes that she was a regular user of methamphetamines, with the father, during the early years of their relationship, but abstained from drug use, during the six years the parties lived in Darwin. She agrees that Mr West was also abstinent during this period. 

1. However, it is her case that he resumed heavy amphetamine use, when the parties returned to live in Adelaide, after their marriage in [omitted] of 2010.  Thereafter, she asserts that she smoked methamphetamines, at the father’s instigation, on a number of occasions, but nowhere near to the same degree as Mr West.  She assets that she has been drug free for the last twelve months.

2. Ms West also denies that she regularly disappeared after the family returned to live in Adelaide.  It is her case that she has always been [X]’s primary carer.  She maintains her description of the father as a controlling and threatening person. 

3. In this context, she asserts that the father wrote her threatening letters from prison, after he had been remanded in custody in early 2014, which she alleges led to her indicating to police that she did not wish to proceed with home invasion charges against the father.

4. The father has also filed further affidavit material.  This includes a short affidavit from his sister, Ms C, which indicates her willingness to supervise any time occurring between the father and [X]. 

5. Ms C deposes that she has a good relationship with Mr West and believes that he would follow her directions.  She currently cares for four children aged between sixteen and ten years of age.  It is her evidence that she has never seen her brother behaving violently or inappropriately in any way.

6. One further significant evidentiary issue arises as a consequence of the fresh affidavit material filed by Mr West.  It supports his assertion that [X] was regularly cared for in a week-about arrangement during 2014.  It must be viewed in the context of evidence led by the mother, in her initiating affidavit, which asserted, in effect, that the father had abducted [X] from her day care centre in August of 2014.[2]

   [2]  See mother’s affidavit filed 4 December 2014 at paragraph 39

7. Mr West asserts that he and [X] went on a holiday together, to Queensland, with the mother’s permission, in August.  He has provided happy photographs of him and [X] at various theme parks on the Gold Coast.  No doubt the photographs are provided to support his assertion that he has a normal, loving relationship with [X].

8. In addition, it is Mr West’s evidence that he and the mother attended a [omitted] concert on 7 November 2014.  The implication of this evidence being that the mother is not as frightened and intimidated by him as she would want the court to believe now.

The nature of an interim hearing

1. The evidence so far available in this case is confusing, contradictory and disturbing.  It has been prepared hastily, against a background of extreme urgency.  The positions of the parties are polarised and each has responded quickly to deny allegations of poor behaviour.  As such, it is impossible for the court to construct a clear narrative of what has occurred in the parties’ clearly labile relationship.

2. The various factual issues in dispute between the parties cannot be resolved in the context of these interim proceedings, which take place in an abbreviated form.  At this stage, neither party has been cross-examined by the lawyer for the other.  As such, the court, at this stage, cannot resolve the serious and worrying controversies arising in the case. 

3. In addition, as yet, I have no independent and expert evidence evaluating the case from [X]’s perspective.  It is her interests, not the rights of her parents, which are the most important consideration in the case, particularly [X]’s entitlement to be protected from coming to harm as a result of being exposed to family violence or the drug abuse of one or both of her parents.

4. In difficult cases, such as this one, it is invariably the case that the court orders that a family report be prepared, most usually by a psychologist experienced in assessing children and their relationships with their parents.  Such reports take time to prepare.  In this case, because of the urgency of the case, there is as yet no family report. 

5. Notwithstanding these evidentiary difficulties, the court must still make a decision and put in place the orders, which it thinks will best regulate the situation, so far as [X] is concerned.  In this context, the parties need to bear in the mind that the orders, which the court makes at this stage, are provisional in nature and will stand only until the court makes other interim orders or finalises the matter, after hearing all relevant evidence or the parties themselves otherwise agree on a satisfactory arrangement for [X].  This is not the final hearing of the case. 

The issues

1. After having tried to summarise the respective positions of each of the parties, it is useful to list the various issues, which the case raises.  These issues can then be tied to the applicable legal principles, which the court must utilise to resolve the case.  The salient issues appear to be as follows:

   ·has [X] been exposed to family violence?

   ·if so, what is the potency of that family violence?

   ·how serious are the issues of drug abuse in this case?

   ·what are the implications of drug addiction and family violence for both [X]’s physical safety and psychological well-being?

   ·what evidence is required, by the court, to assess how successfully each party has dealt with issues to do with previous drug addiction and family violence, which have arisen in their past relationship. 

   ·what is the quality of [X]’s relationship with each of her parents?

   ·what processes should the court put in place to assess the nature of [X]’s relationship with each of her parents?

   ·by what means, if at all, should [X] interact with her father at this early stage?

   ·in this context, should [X]’s time with her father be subject to supervision?  If so, should such supervision be professional or lay?

2. Pursuant to the provisions of section 68LA of the Family Law Act 1975, Mr Stephen is required to form an independent view, based on all the evidence available to him, of what is [X]’s best interests.  Mr Stephen also has obligations to obtain any relevant evidence, which he believes will assist the court to come to the best outcome for [X]. 

3. Clearly, at this stage, Mr Stephen has not had a great deal of time to discharge his statutory obligations arising under the Act.  He was troubled by the portion of the mother’s affidavit, which indicated that [X] had become extremely distressed during the unpleasant incident of early January 2014. 

4. In this context, he had some concerns about the viability of a process of supervised time occurring between [X] and her father.  He was fearful that it might be premature to embark upon such a process before any examination of [X]’s emotional resilience had been undertaken. 

5. As a consequence of his concerns, Mr Stephen proposed a child inclusive family dispute resolution conference, to be inaugurated pursuant to the provisions of section 11F of the Act to ascertain what views, if any, [X] had about spending time with her father. 

6. It was Mr Stephen’s view that this approach was better than embarking upon an untested process of supervised time, either in a children’s contact centre or by another family member.  Section 11E authorises the court to seek advice, from a family consultant, about the needs of the family or child concerned.

The principles applicable

1. The same legal principles apply at both the interim and the final hearing stage.  The difference being that interim hearings do not determine long term arrangements for children.  That is the function of final hearings. 

2. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

5. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the child who is the subject of the relevant proceedings. 

7. Accordingly, one of the emphases in the Family Law Act is on protecting children, who have been exposed to family violence in the past or who may be in the future. 

8. Fundamentally, this task requires the court to assess the risk to a child, in both physical and psychological terms, of interacting with a parent, who has behaved in a violent way previously.  As such, the task is both retrospective and prospective.

9. In T & N,[3] Moore J, after reference to social science research, identified the highly detrimental consequences, for the wellbeing of children, of being exposed to family violence.  She said as follows:

   “They [children] are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence.  Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”

   [3]  See T & N (2003) FLC 93-172 at 78,760

10. There is also an emphasis, in the legislation on parents, wherever possible, sharing parental responsibility for their children. As a consequence, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

11. In this case, it is not necessary to discuss the application of the presumption in any detail, to the parties’ care of [X].  In general terms, the presumption is rebutted if the court, on reasonable grounds, believes that a relevant parent has engaged in family violence.  In this case, I am satisfied that the presumption is clearly rebutted on the basis of family violence issues, raised by both parents. 

12. Accordingly, it is the responsibility of the court, in the present matter, to consider all the matters listed in section 60CC, as they pertain to [X], to reach what it thinks is the best outcome for her, bearing in mind the truncated nature of the current hearing and the imprecise and contested nature of the evidence, which it throws up.

13. Clearly the central evidentiary issue in the case is family violence and its implications for [X] personally. The concept of family violence is defined in section 4AB(1) of the Act. It means as follows:

    “… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to fearful.”

14. Interestingly, in section 4AB(2) the legislature has listed examples of behaviour that may constitute family violence.  These include the following:

    ·an assault

    ·repeated derogatory taunts;

    ·intentionally damaging or destroying property; and

    ·the unreasonable withholding of financial support.

Primary considerations

1. Ms West’s evidence, which is as yet untested, is that she has been assaulted on numerous occasions by Mr West and has been taunted by him.  In addition, she asserts that Mr West has damaged and destroyed many items of her property.  Her evidence is that she has frequently been frightened of Mr West. 

2. The police have been summonsed to Ms West’s home on at least two occasions.  On these occasions, Mr West has been subject to police charge.  For his part, Mr West has also admitted damaging his former partner’s property on more than one occasion. 

3. In my provisional assessment, these incidents cannot be described as being isolated examples of behaviour.  In my view, they must be regarded as being serious incidents of family violence, particularly the incident of January 2014, after which the father was held in custody.

4. The precise connection, if any, between methamphetamine use and these incidents of violence is as yet uncertain.  However, I am concerned at the father’s return of a urine test positive for methamphetamine only a few days ago, after the commencement of these proceedings by the mother and after she, if her evidence is to be believed, had been forced to live in hiding to protect herself from the father. 

5. In all these circumstances, on the evidence currently available to me, I assess the potency of the family violence arising in this case as being extreme.  The incidents of violence have not been isolated.  They have involved other persons and the police. 

6. In addition, the mother has successfully obtained a domestic violence order, against the father, which has allegedly been breached recently.  In my view, it is potentially extremely dangerous for the parties to come into any form of contact with one another at the present time.

7. In addition, I am concerned that there is at present a paucity of evidence about the individual incidents of family violence arising between the parties.  It is likely that the police have significant documentary records in respect of the incidents of both early January 2014 and November 2014. 

8. These records are likely to include details of statements taken by police; the circumstances in which Mr West was taken into custody; and the reasons why charges were discontinued against him.  In my view, at this stage, it would be derelict of the court to proceed without the independent children’s lawyer having examined these salient documents. 

9. Pursuant to section 4AB(3) a child is exposed to family violence if the child sees or hears family violence or otherwise experiences its effects.  Again, the legislature has seen fit to give examples of situations which may constitute a child being exposed to family violence.  They include the following:

   ·overhearing threats;

   ·seeing or hearing an assault;

   ·comforting or providing assistance to a member of the child’s family, following an assault;

   ·cleaning up after property has been damaged; and

   ·being present when police attend an incident involving an assault.

10. In this case, in my view, the evidence clearly supports a finding that [X] has been exposed to family violence, within the meaning envisaged by the applicable legislation.  Both parties acknowledge that [X] saw her father being arrested. 

11. It seems highly probable that [X] has also seen property, which has been damaged during altercations between her parents. As a consequence, she is likely to be aware of the violent and unstable nature of her parents’ relationship.

12. Given my view about the potency of the family violence in this case, and the likelihood that [X] herself has been exposed to it, in my view, the main emphasis in the case, at this stage, must be on the protective concerns contained in section 60CC(2)(b).

13. The quality of [X]’s relationship, with each of her parents, is difficult to assess at the present time, given the parties’ diametrically opposing views about recent arrangements for her care.  The mother portrays herself as [X]’s consistent primary carer and denies persistently disappearing from her life.  The father assets a shared care regime, with him being [X]’s more reliable parent. 

14. I have closely examined the happy holiday photographs, which show [X] in a variety of relaxed situations with her father.  They purport to demonstrate a happy and normal father/daughter relationship.  At first blush, the photographs are consistent with such a relationship. 

15. The mother’s position is that [X] was abducted prior to the holiday in question, which she knew nothing about. Notwithstanding the mother’s lack of initial candour, about her own drug issues, in these difficult and conflicted circumstances, I believe that I must approach the photographs and what they are said to demonstrate with a high degree of caution. 

16. A photograph is a frozen instant of time. Individuals, who pose for photographs, more often than not try to present themselves as cheerful.  This is true just as much for children as for adults, I think. The photographs in this case, although illuminating, cannot of themselves demonstrate the true nature of the relationship between [X] and her father. 

17. However, it would appear to be the case that [X] knows her father well.  [X] is a little over five years of age at present.  She has seen her father regularly during her life to date and the two have shared the same household for much of it.  As at the date of this hearing, Mr West has not seen [X] for a period of around three months, which has included Christmas time. 

18. In all these circumstances, the court cannot overlook the benefits, which [X] is likely to derive, both now and into the future, from having a meaningful level of relationship with her father.  For the relationship between father and daughter to be meaningful, it is necessary for the two to engage with one another with some degree of regularity and intimacy.  For a child of five years of age, three months is a very long time indeed. 

19. The parties have both enrolled at the [C] Children’s Contact Centre.  Contact centres provide a safe and controlled environment in which a child can interact with a parent.  Their services are invaluable in the context of the many difficult and insoluble cases, which come before the court, particularly in matters concerning allegations of sexual abuse and mental illness. 

20. Regrettably, there are many calls on the services of children’s contact centres and, as a consequence, the waiting list for supervised time is long.  In the case of [C], it is between 8 and 10 weeks.  In addition, because the services of children’s contact services are such a precious resource for very many families, at best, such services can only offer two hours per week of supervised time. 

21. Notwithstanding the best efforts of the many dedicated staff who operate such centres, they are inevitably institutional in nature.  It is also necessary, for obvious reasons, for contact centres to be secure.  It is sometimes difficult to have a warm and spontaneous relationship with a child, if a parent is aware that he or she has a person looking over his or her shoulder taking notes. 

22. In all these circumstances, it behoves the court to give close consideration as to whether or not to enlist a children’s contact centre, when other options are available.  In addition, if a child is resistant to separating from a parent, prior to a session of supervised time, the staff of contact centres do not consider it to be their role to compel compliance. 

23. This is one element of Mr Stephen’s objection to supervised time, in the present case.  He believes that it is incumbent upon the court to ascertain whether [X] will be able to separate from her mother, without undue anxiety, before an order for supervised time is made, otherwise the process of re-engagement between father and child will be further delayed, adding to the frustration of Mr West. 

1. There are obvious advantages to a parent being able to interact with a child, in the presence of a trusted relative or some other honest broker.  Such an arrangement can be more flexible; allow for more time to take place; and for that time to occur in a more natural domestic setting.  The perennial difficulty is that in high conflict families, such as the present one, there is invariably a dearth of potential supervisors, who have the confidence of both parties. 

2. So it is in the present case.  Ms C is closely aligned with the father.  Her affidavit evidence is brief and untested.  As such, it is unclear how she would manage any situation of conflict with her brother or ascertain whether he was under the influence of any illicit drug during a period of supervision and what she would do about it.  More significantly, she does not have the trust of Ms West. 

3. In all these circumstances, I have grave reservations about both potential forms of supervision.  In this context, I can see many advantages in Mr Stephen’s proposal to approach the matter from [X]’s perspective and examine what is the nature of her relationship with her father and her views, if any, about how and where she wishes to interact with him. 

4. This militates in favour of their being an early independent assessment undertaken of [X], prior to any orders being made for her to spend time with her father.  The rationale being a cautious and considered approach to the case will achieve more in the longer term than a more precipitate approach.  The next question for the court, being what form that examination should take. 

5. Given the inherent complexity in this matter and the unresolved nature of many of the evidentiary issues, which arise in it, I am concerned that the short form child inclusive family dispute conference, proposed by Mr Stephen is inappropriate.  I am particularly concerned about [X]’s tender years in such a setting and the difficulty, which is likely to arise, for the family consultant, in having to interview her, when time is short. 

6. As such, I consider that the only way for the court to have reliable information regarding [X] and her relationship with each of her parents is through a formal family report.  The difficulty with such a family report is that it is a cost and time intensive exercise.  It is likely to take approximately fourteen weeks for such a report to be completed.

7. However, when all is said and done, there is not a huge difference between the likely waiting time for the parties to enter the [C] Children’s Contract program and the time needed for a family report.  In my view, a consideration of the applicable primary considerations dictate that the court take a cautious approach in respect of the issue of [X] being re-introduced to her father.

8. In my view, considerations of this type militate in favour of there being a comprehensive family report commissioned in this matter sooner rather than later.  This report will examine the nature of [X]’s relationship with each of her parents and particularly any possible psychological consequences of having been exposed to the turbulent and at times violent relationship between her parents.

9. In my view, this slower, but more cautious approach, is more appropriate either than a child inclusive family dispute resolution conference or a process of strictly supervised time at a children’s contact centre.

10. It seems probable that [X]’s life has been a disrupted one over the last twelve months or so.  During this period, her father was absent from her life, for around three months, whilst he was incarcerated.  More recently again, after the incident of late November 2014, [X] has not seen her father for a further period of around two and a half months.  In these circumstances, there is much to be said for the court attempting to bring some level of normality to [X]’s life, if at all possible. 

11. As indicated above, I accept that [X] knows her father well.  In this context, there is some appeal in allowing [X] to interact, with her father, in a safe but common place environment, in the presence of someone she knows.  From Mr West’s perspective, such a person is [X]’s aunt, Ms C. 

12. On any view, the situation between the mother and father is a complicated and mistrustful one.  In addition, there is some evidence indicating recent amphetamine use on the part of Mr West.  I have not heard any detailed evidence from Ms C and as such, have no way of gauging her suitability to be both an adequate supervisor and an honest broker between the parties. 

13. In these circumstances, I do not think that it would be in [X]’s best interests for there to be the process of supervised time proposed by

    
    

    Mr West.  Again, this is an issue which can be revisited following the completion of a family report. 

Additional considerations

1. [X]’s views about her father are important. However, she is still a child of tender years and so vulnerable.  In my view, the best means of ascertaining her views and her maturity to express such views is through the medium of a family report. 

2. [X] has been through several significant changes over the last few months.  How she has responded to those changes and will respond to the change in her current circumstances, proposed by Mr West, is uncertain.  Again, in my view, considerations of this type militate in favour of the court taking a cautious approach to the case. 

3. In this case, both parties make significant criticisms of the parental capacity of the other and assert that the other parent has a flawed attitude to the heavy responsibilities of being a parent.  Obviously, parental capacity is likely to be compromised by drug use.  This is a significant area of concern for the court in respect of both the father and the mother. 

4. The mother was not initially frank about her own past history of drug use.  However, she has been able to provide a clear drug screen test, which was undertaken within hours of its first order.  She asserts that she has been drug free for the last twelve months or so. 

5. The father has been more frank about his amphetamine use.  However, recent objective evidence indicates that he has used amphetamines fairly recently.  In the volatile circumstances of the parties, this must be a major cause of concern.  It is trite, but true nonetheless, that one of the responsibilities of being a competent parent is not to abuse drugs or behave violently to the other parent concerned. 

6. It is Mr West’s evidence that he is willing to attend a course of drug and alcohol counselling and to attend upon a violence counsellor.  Reports from these counsellors are likely to be important to the court in assessing the level of insight displayed by Mr West into the consequences of his past behaviour for [X]. 

7. As I indicated, when I attempted to encapsulate the important issues in this case, the latency of the parties’ behaviour, so far as [X]’s psychological well-being is concerned, is one of the central issues in the case. 

8. In this context, reports from any counsellors, whom Mr West has consulted, are likely to be central.  Again, the fact that this counselling is in its rudimentary stages and no such reports are as yet to hand is a further factor in favour of the court taking a cautious and incremental approach to the case.  

9. There have been two family violence orders made in the mother’s favour to date. On the evidence available to me, I do not think that the orders in question have been granted on spurious or technical grounds. I have not as yet been provided with proper copies of those domestic violence orders. Given the provisions contained in section 60CC(3)(k), this omission needs to be rectified as soon as possible.

Conclusions

1. For all these reasons, I propose ordering a family report pursuant to section 62G of the Family Law Act 1975 which is to be released on or before 29 May 2015.  I do not propose to make any other alterations to the orders which were initially made on 5 December 2014.  I will however revisit the matter, when the family report is to hand. 

2. Family reports are usually ordered in conjunction with the allocation of a final hearing date.  Although this case would appear to have a long way to run, as yet, I will allocate a hearing date, which necessarily will be in the second half of 2015.

3. The parties also have outstanding property issues.  I will refer the parties to a financial mediation conference to be held on 6 May 2015 and will make the standard orders requiring informal disclosure and exchange of financial information 21 days prior to the date scheduled for the conference.

4. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:       18 February 2015