Orders now inconsistent with parent’s current conduct
Turnley & Gibb  FamCA 53 (5 February 2016)
Last Updated: 17 February 2016
FAMILY COURT OF AUSTRALIA
FAMILY LAW – CHILDREN – Review of a decision of a Senior Registrar – Interim parenting – Where there is one child who is ten years of age – Where final parenting orders had been made in April 2015 that the father have sole parental responsibility of the child, that the child live with him and spend time with the mother – Where the Senior Registrar made an order that the child be returned to his father’s care and a recovery order issued – Where the mother seeks orders on an interim basis for sole parental responsibility, that the child live with her and spend time with the father – Where it was found that to make orders for the child to live with the mother would be likely to expose him to an unacceptable risk of family violence – Where the behaviour by the father is inconsistent with what the Court would expect from a parent in whom it has placed sole parental responsibility – Where there is no alternative than to leave the child in the care of the father – Where the Court requests the Secretary, Department of Family and Community Services to intervene in these proceedings – Orders made that pending further order the father have sole parental responsibility, that the child live with the father and spend time with the mother each alternate Saturday.
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/53.html
(1) That a copy of these Reasons and the orders made today be forwarded by Johnston J’s Associate to the Secretary, Department of Family and Community Services and that the Secretary is requested to consider as a matter of urgency to intervene in these proceedings in circumstances where the Court has found that the child B born on … 2006 is at risk of exposure to family violence in the household of his father with whom he is residing.
- Within 21 days of these orders the father will attend upon a general practitioner and obtain a referral to a therapist with experience in family therapy and anger management, and the father will then make an appointment with the therapist. Such appointment is to take place no later than within 12 weeks of the date of these orders.
- The father will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.
- On or before his first appointment with the therapist, the father shall give to the therapist (or cause to be given) a copy of these orders, the Family Report of [Ms H] dated 25 June 2014 and a copy of the reasons for judgment dated 9 April 2015 and 5 February 2016.
- The father will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 74 to assist the father to develop insight into his contribution to the dysfunction the co-parenting relationship between the mother and the father and his propensity to engage in behaviour that either is or can be perceived as violent or intimidating.
- Within 24 hours of the father obtaining an appointment with the therapist in Order 7 the father will notify the mother and the Independent Children’s Lawyer of the name and full contact details of the therapist.
- The Mother will continue to attend a domestic violence counsellor of her choosing, and will continue to attend upon that counsellor until such time as the counsellor advises that it is no longer necessary or beneficial for her to attend.
- The father will ensure the attendance of the child for ongoing counselling with an appropriate counsellor as agreed to or recommended by the Independent Children’s Lawyer regarding the child spending time with the Mother, the parental conflict and the child’s relationship with each of the parents.
- In the event that the child’s counsellor recommends the involvement of one or both of the parents in the child’s counselling, each parent will do all acts and things necessary to participate in the child’s counselling to the extent recommended by the child’s counsellor.
- For the purposes of Orders 7 to 14 above, leave is granted to the mother, the father and the Independent Children’s Lawyer to provide a copy of these orders, the Family Report of [Ms H] dated 25 June 2014 and a copy of the reasons for judgment dated 9 April 2015 and 5 February 2016, to any professional consulted by either party to carry out an obligation under these orders.
- These orders authorise any therapist or counsellor engaged by either parent to speak with and provide information about the family and treatment to other medical or psychological professionals engaged by that parent or by/with the family.
- These orders authorise any therapist or counsellor engaged by either parent to speak with and provide the Independent Children’s Lawyer with information about the family and treatment, and the Court requests that therapists engaged by the father and the mother pursuant to Orders 7, 12 and 13 to notify the Independent Children’s Lawyer should the father and/or mother and/or the child miss, cancel or reschedule more than two appointments in a row.
- On 10 December 2015 Senior Registrar Campbell made an order that the child the child B born in 2006 be returned to his father’s care immediately.
- The learned senior registrar also made an order for a recovery order which would empower the police to locate and recover the child and for such recovery order to lie in the registry.
- The senior registrar’s expectation was that the child’s mother, Ms Turnley (“the mother”), would return the child to his father, Mr Gibb (“the father”) and that it would be unnecessary to subject the child to police involvement.
- But the mother did not return the child. She decided that she could not do so. The recovery order issued and the police recovered the child on 18 December 2015 and delivered him to his father.
- What is before me for determination is an application by the mother for review of the order of the learned senior registrar.
- It is common ground that on Friday, 11 September 2015 (although the father was emphatic in his affidavit that it was Wednesday, 9 September 2015) Ms O called at the caravan park at N Town where the father and child reside to collect the children for a dental appointment. Ms O alleged that the father had a knife in a sheath hanging from his neck on a rope and that he also had a fillet knife in his hand. Ms O said they started to have an argument and the father removed the knife from the sheath and made a slicing motion across his neck. Ms O said that she became very scared for her safety. She said the father then pointed the knife towards her neck and made the same slicing motion. Ms O said she thought she might be stabbed by the father. Ms O recorded the conversation on her mobile phone.
- The police facts statement that day stated that during the last five minutes of the recording the father can be heard making threats, there is an argument regarding possession of a knife and subsequently the father could be heard saying, “Open it up or I’m going to cut your throat right now”, “I’ll kick it out of your hand” (during which the children could be heard knocking on the door), “Walk over me all the time and [Ms JJ’s] going to get it too”, “Every cunt involved in this I’m going to fuck up”, “Fucking betrayed us all you dog”. There were many other references in the fact statement, including the father saying, “You are scum, don’t come back” and “Say goodbye to your mother”.
- The fact statement records the father, when presented with this material, having denied any incident regarding knives or threats to Ms O, having admitted saying, “I could kill you but you are their mother” and “I could kill [Ms KK]” in an aggressive tone, but said he had no intention of physical harm or genuine threat. (I note that Ms KK was a woman with whom the father alleged the mother was having an affair.) The father admitted to police that his aggression and anger were excessive.
- Ms O informed police that she was extremely intimidated and fearful by the father’s actions.
- The police charged the father with an intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and I note that an Apprehended Violence Order (“AVO”) issued.
- The father said that this was a set-up by Ms O. He conceded that he and Ms O became involved in heated argument and that each was yelling at the other. He said he heard Ms O say, “What are you doing with that knife?” He said he said, “What knife? If I had a knife I’d cut your fucking throat.” He said she said, “No. Stop. Don’t do that” and he yelled, “Don’t you tell me what to do. Just go. Get out.”
- The father said that Ms O then walked outside and down the driveway. He saw her wave her mobile phone at him. He did not know what this meant but later ascertained that she had recorded their argument on her mobile phone and gave this to the police.
- It is impossible, given the confined nature of this hearing which is on the papers, to form a view about where the truth probably lies here. The father said that he proposes to defend the charge. An AVO issued for the protection of Ms O.
- In any event, the following week, that is on 16 September 2015, the police arrested the father and took him to the police station, where he was detained until approximately 4.30 pm. When the father returned home, the children including the child were not at home. As I shall soon observe the mother removed the child from school and maintained him in her care.
- It is clear that the mother and Ms O have been in close communication over this relevant period. Ms O told the mother about the above events. The mother said that Ms O said that the father had pulled knives on her and that she had recorded their argument. The mother said that on 16 September 2015 Ms O’s partner Ms KK telephoned her and indicated that the father had been arrested and charged that day. The mother also said that Ms O also rang her and indicated that the police had informed her to go to the father’s residence at the caravan park and collect the children. She said she went to the caravan park but someone had locked themselves in the father’s home with their two children and the caravan park owner told her to remove herself from the caravan park.
- The mother said she then contacted the Department of Family and Community Services (“DFACS”)and spoke with a Senior Child Protection case worker, Mr LL. She said that Mr LL said she should collect the child from school because if his father was not released on bail the child would have nowhere to stay that night. She said that Mr LL also suggested she really needed to have the court orders varied. The mother said that DFACS supported her collecting the child and that Mr LL rang the child’s school principal, who arranged for the mother to take him from school.
- The following day, 17 September 2015, the mother arranged for the child to go to MM Town and stay with her sister, Ms NN. The mother arranged for the child to attend OO School in MM Town. The child lived with the mother’s sister at MM Town until the mother commenced living there with them on 20 November 2015. The mother obtained accommodation at MM Town on 7 December 2015.
- As indicated above, the recovery order was executed on 18 December 2015 and the child was restored to his father’s care.
- The governing principle in parenting proceedings is the best interests of the child.
- Both counsel and the ICL have submitted that this is a case about risk and child protection. It is submitted that what the Court needs to do in this case is to weigh the risks for the child in each of the competing households.
- t is clear that in October 2015, in the aftermath of the mother having removed the child and of Ms O having left him, the father became very depressed. On 7 and 8 October, he posted information on his Facebook page, which I interpret to be a threat to commit suicide. Even more worrying is that the father tagged this threat to the children, including the child, and indicated that he hoped one day they would understand and forgive him.
- The father admitted making the Facebook entries, but he denied that what he wrote was a suicide note. He said he was very upset and thought that the mother, Ms O and Ms KK had conspired against him to remove the children from him. He said he is not and never has been suicidal, which appears to me to be inconsistent with him having committed self-harm years ago in prison.
- But this is not the only worrying behaviour by the father. A couple of weeks later, namely on 20 October 2015, the father telephoned the Principal of the child’s school in MM Town, Ms PP, and threatened her. The father agreed that he did have a telephone conversation with Ms PP, but denied that he threatened her. He said he informed her that the child had been kidnapped and that he was not giving her permission to enrol the child. He said he informed Ms PP that if she enrolled the child, he would sue her for it.
- Ms PP informed the police about the father’s telephone call. The police record notes that Ms PP said that the father was very angry and upset that the child was at the school, and that it was a one-sided tirade from the father. The father said words to the effect of “I’m going to sue you. I’m going to get you. You better watch out.”.
- I must say I prefer the version in the police record to the father’s denial. In my view, it is more probable than not that the father threatened the school principal. I also accept that as a consequence of the father’s threat, the Principal placed the school into a state of semi-lockdown until the end of term in December 2015, with the gates being locked in an endeavour to prevent the father entering the school.
- It was submitted on behalf of the mother that whereas previously she had difficulty providing a safe home for the child because of her relationship with Mr Turnley, her relationship with him concluded for the final time in November 2015, as evidenced by her going to MM Town, and particularly obtaining her own accommodation at MM Town. It is said that she has no intention of resuming her relationship with Mr Turnley.
- I must say the mother has a history of separating from Mr Turnley and reconciling with him. I have referred to Loughnan J’s concern in finding that the mother was unable to protect the child from Mr Turnley. I am far from persuaded that on the basis of the mother’s assertion that she has been separated from Mr Turnley and living independently from him for some weeks that this would be a proper basis for turning right around the very strong concerns this Court previously had that the mother would not be able to finish her relationship with Mr Turnley.
- None of what the mother says gives me any confidence that the risk of the child’s exposure to family violence in the household of the mother is any less than at the time Loughnan J was considering the parenting arrangements. Perhaps if the mother was able to maintain a situation over some time in which she could demonstrate clearly that Mr Turnley has no part in her life, this Court might be persuaded to a more favourable view to her about this.
- In my view, to review the Senior Registrar’s decision and to make orders that the child live with his mother would be likely to expose him to an unacceptable risk of being exposed to family violence.
- On the other hand, the expectations that this Court had in making the final orders that the father have sole parental responsibility for the child and that the father would be able to provide an appropriate home situation for the child have, in my view, been disappointed.
- Unfortunately, in my view, whereas Loughnan J had found that there was no evidence of any recent violence by the father, this is no longer the case.
- There is no question that the father in his text messages to both the mother and Ms O was abusive, insulting and disrespectful. In my view, his text messages contain repeated derogatory taunts, as referred to in subsection 4AB(2)(d) of the Act.
- He posted to the child and the other children his threat to commit suicide. He says it was not a suicide threat. On a plain reading of his written words, I cannot interpret it in any other way. In my view, this has exposed the child to violence.
- All this behaviour by the father is completely inconsistent with what the Court would expect from a parent in whom it has placed sole parental responsibility for a child.
- Accordingly, I propose to request the Secretary, Department of Family and Community Services to intervene in these proceedings.
- The ICL has suggested that because the mother is not a viable parent with whom the child could live because of her relationship with Mr Turnley, there is really no alternative than to leave the child in the care of his father. I accept this with considerable reservation.
- Turning to the requirements of Part VII of the Act, as Loughnan J found, the presumption of equal shared parental responsibility does not apply because this case involves considerable family violence.
- In my view, as was found by Loughnan J, there still appears to be no sensible or practical alternative than to leave parental responsibility with the parent with whom the child would be primarily living, namely, the father.
- In relation to the primary considerations I have to give greater weight to the protective consideration in s 60CC(2)(b) of the Act. And I have done so. As was said at the outset, this is a case about weighing risk.
- So far as the additional considerations are concerned, not a lot has changed since Loughnan J considered these. But so far as violence is concerned, whereas his Honour was not persuaded that some level of allegations that the father had been violent had been made out, I have a different view and find that on a balance of probabilities this is no longer the case and that it is more probable than not that in fact there have been acts of violence by the father, as I have referred to above.