Police records assist best interests outcome

Police records assist best interests outcome

Henry & Hancock

The father’s case

41. The father makes the following allegations:
    • In his opinion the mother suffers mental health issues. She has declined to see a psychiatrist because she is frightened the government may remove the children from her care. Whilst in (country omitted), she attempted to commit suicide which is evident from scars on her wrists.
    • The mother suffers from insulin dependent diabetes. On one occasion she collapsed and was taken to hospital. As a consequence, police intervened and took the children to hospital.
    • The mother has made numerous false complaints to police that she has been the victim of domestic violence from him. Mr Henry denies these allegations.
    • The father concedes that police have come to the parties’ home on over twenty occasions and Ms Hancock has made three formal complaints to police, which have resulted in him being arrested and charged.
    • Following her complaints to police, the mother has subsequently informed the relevant officers that she was confused when she made her complaints due to symptoms arising from her not taking insulin. She has declined to make subsequent statements to police and has admitted lying to them.
    • The mother has been violent towards him and the children and broken items of property in the home. She has also punched holes in the walls.
    • The mother frequently slaps the children and pinches them. She grabbed X by the throat and choked him. Some of these matters have been reported to police but the father has declined to proceed with charges against the mother because he loves her.
    • The mother suffers from mood swings and would spend extensive periods of time in bed. In these circumstances, he and A have provided for the care of the two younger children for about 70% of the time.
    • His accommodation is secure and comfortable for the children.

The mother’s case

42. The mother makes the following allegations:
    • The father behaved in a controlling and aggressive manner towards her during the parties’ marriage. He hurt her at least once or twice each fortnight and sometimes up to four or five times per week.
    • This violence consisted of the father hitting her with his hands; slapping her face; grabbing her throat; and pulling her hair.
    • The father made verbal threats to her including threatening to kill her.
    • The father fractured her nose whilst the parties were living in (country omitted) in (omitted) of 2011.
    • The child X has observed this behaviour.
    • The father has hit the children on many occasions, including after he has assaulted her or when the children were behaving noisily.
    • The parties have separated on numerous occasions during their relationship. Their longest separation was approximately three months.
    • During these separations, the mother and the children have lived in emergency accommodation arranged by the Police, Red Cross or an unspecified domestic violence organisation.
    • The father has prevailed on the mother to withdraw police charges against him by intimidating her. He has threatened her with violence or that she will be returned to a detention centre if she does not continue with the marriage.
    • In August 2015, the father hit A who reported the incident to Police.
    • The father has been controlling of the mother in respect of her appearance and clothing.
    • The father has restricted the mother’s access to family financial resources particularly moneys received from Centrelink.
    • The mother denies that the father was significantly involved in the care of the children. It is her position that he rarely helped with the children and she was the parent who regularly changed nappies, bathed and played with the children and prepared their meals.
    • The mother denies that she has ever behaved violently or aggressively towards either the father or the children.
    • On 22 January 2016, she and the father had an argument which escalated leading to the father slapping her face and pushing her head into wall.
    • The following day the matter was reported to police who obtained an interim family violence order on her behalf.
    • She acknowledges suffering from diabetes but asserts that her illness is under control and she takes her medication as directed.
    • She and X and Y are currently comfortably settled in a granny flat in the Sydney area which she has been renting since 8 July 2016.
    • She receives the maximum rate of a special benefit from Centrelink. The two children concerned are attending day care three days per week and are well settled.
43. The mother’s position is summarised in her affidavit as follows:
    “I want the children to remain living with me in Sydney so that they are not exposed to any further violence or aggression.

Based on my past experiences with Mr Henry, I am scared for the safety of my children and myself if we were to return to South Australia. I have fears that Mr Henry will not follow the terms of any Intervention Order. I am afraid that Mr Henry will continue to contact me and try to convince me to return to a relationship with him. Mr Henry has not followed the orders in the past. I am particularly concerned that Mr Henry will harm me or the children because he is very angry about me refusing to return to a relationship with him.”^[2]

The SAPOL Documents

91. Neither party has attempted to index the police documents or tabulate them in a way, which would assist the court to reference them easily. I accept that they have not had a lot of time to do this. I have therefore read the documents myself and attempted, as best I could, to make sense of them. I accept that I may not have been entirely successful in this. This process delayed the delivery of judgment.
92. The police records are copious; duplicated; not placed in chronological order; and written in police bureaucratise. There are also different categories of documents, which were apparently compiled by the officers concerned for different purposes. It is however clear that they were compiled solely for the purposes of the police and not necessarily to inform an outside source of what actually occurred and what is or was the view of the officers concerned.
93. It is not easy for the lay person to follow the documentary trail. The documents are largely computer generated. The date they bear is the date on which the document was generated rather than the date of the incident reported in the record concerned. In addition significant portions of the documents have been subject to redaction.
94. The records reveal Mr Henry has one prior court appearance, for failing to comply with a bail condition, in respect of which he was discharged without penalty. The offence occurred on 11 October 2013 and it was dealt with on 5 February 2014.
95. The records speak of Ms Hancock having an Immigration Department worker. Evidence available to the police, from this person, indicates that the parties came from (country omitted) separately and were initially placed in separate detention centres.
96. The first category of documents is entitled incident reports. On 13 September 2013, the mother reported to police, at (omitted) Police Station that she had been raped and punched by the father, in late August 2013 and 13 September 2013 respectively. The mother also alleged that she had been given some form of tranquilising drug, by the father, prior to being sexually assaulted.
97. She alleged that the latter incident had been precipitated by her resisting the father’s wish to handle Centrelink money. Mr Henry was interviewed and denied all the allegations put to him by police, asserting his wife was crazy and emotional due to her diabetes and pregnancy.
98. On 30 September 2013, the mother approached police and asked them to withdraw charges as she was shortly to give birth. Police declined to do so and the mother was referred to a senior counsellor at Relationships Australia withCALD experience. ^[14] It seems clear that a family violence order was issued against the father following the September complaint.
99. On 18 December 2013, the mother was interviewed at (omitted) police station again. She complained that she had been assaulted whilst attending at the father’s home to collect some of her possessions. She alleged she had been grabbed around the throat and scratched with a set of keys.
100. The father was interviewed in respect of an alleged breach of restraining order following his arrest. He alleged that the mother came to his home, unbeknownst to him, whilst he was out. When he returned she became emotional and began hitting herself. Later placing her scarf around her neck. Accordingly, he denied any intentional breach of the family violence order.
101. In October 2014, the father also made complaints to police that the mother had damaged property in the family home. He also complained that she had stolen property from him. It seems that, at least from the perspective of police, during this period, the parties were living largely apart but spending time together on weekends so that the father could see the children. Extensive damage was observed in the premises including a broken television set caused by having a bowl of yoghurt thrown at it. The father alleged the incident had been precipitated by the mother not taking her insulin.
102. On 2 March 2015 police were called to the home in respect of a verbal altercation between the parties by the mother. No injuries were observed. The mother declined further assistance. Under the heading History it is noted there has been numerous DV incidents between this couple.
103. The mother called police again on 14 February 2015, in respect of an argument over an air conditioner. She declined to provide a statement. Under the heading History it is noted that there are 6 previous incidents… MAPS^[15] and other agencies involved and there seem to be on-going issues regarding culture and victim not cooperating.
104. In mid-2015 records note that the mother contacted police to advise that she had moved out of the home but is in constant fear the father will find out where she lives and [she] feels he is a significant threat to her welfare and that of her children.
105. In October/November 2015 a series of entries indicate that police assisted the mother and children to pack up their belongings and for accommodation arrangements to be made through crisis care. The records note that the summons was made by a 13 year old female – presumably A – who wanted help for herself and her mother. The note indicates that no accommodation was available and the family decided to move from the front of station to their car to sleep a bit more comfortably.
106. A follow up on 4 November indicated that the mother was then in domestic violence housing with 3 children and was receiving DV services. She did not want to make a report to police. A DV Risk assessment indicated a medium score of 32. I do not know what this means in specific terms and what considerations are utilised to make the assessment.
107. On 22 January 2016 the police records indicate that the mother presented at the (omitted) police station and complained of having been slapped by the father following an argument about the changing of a nappy.
108. The next category of documents is entitled Running sheet entries. The entries are titled Domestic Violence High Risk. They are voluminous and not easy to follow. As such, I am conscious of the risk of picking entries out of context. However it is clear that the various authors of these records are highly concerned about the situation of both the mother and the children, in the period prior to the parties’ final separation.
109. In January 2014, the mother is reported as complaining to the effect that every wife is assaulted by her husband and police are making a big deal of it. She is also described, around this time, as displaying signs of not being able to cope. The police express concern about the withdrawal of charges. Injuries are observed on X. Conflicting versions are provided in respect of these injuries by the parties.
110. On 5 January 2014, the running sheet indicates that the mother passed out at a pharmacy and been taken to hospital for a suspected panic attack. She was apparently in hospital overnight. The running sheets further indicate that the mother has made numerous representations to police that she wants charges withdrawn against the father and the dvo removed.
111. Police and the magistrate presiding over the case are noted as not being sympathetic to such a course of action. The mother is told she may be charged with aiding a breach of the order and her children removed from her. I am not in position to comment on the accuracy of the information apparently provided to mother.
112. What information can be gleaned from the running sheets is both confusing and concerning. By the time of SAPOL’s final involvement, just before the mother’s departure for New South Wales, the risk assessment is noted to be 48. In earlier records it had been noted as being 83. Again, I reiterate that I am unaware precisely what this signifies and how the figures are calculated.
113. The most recent MAPS summary documents assess the mother as being at high risk of domestic violence. She is described as being easily intimidated by the father. The rape charge was apparently dismissed for want of prosecution. Police are described as being frustrated with the mother for returning to the father.

Conclusions

114. In my view, given the significant involvement of the police, with this family, it would be imprudent of the court to overlook or minimise issues of family violence in this case and indeed such a course would be contrary to the legislative intent of the Act [see section 60CC(2)(b) & 2A]. As previously indicated, the applicable legislation requires protective concerns to be given primacy over matters relating to parental relationships, so far as children are concerned.
115. From both parties’ perspectives, the issues of family violence and abuse are the most pressing issues in the case and, in this context, how best are X and Y to be protected from coming to some form of either physical or psychological harm as a consequence of being exposed to such abuse. The difficulty of course being that each party alleges that it is the other who represents the greater source of risk for the children.
116. As I am at pains to point out to all concerned, I am not in a position to resolve who of the parties was the main proponent of this violence. I am, however, satisfied that significant family violence has occurred and the children have been exposed to it, within the terms envisaged by section 4AB(3) of the Act.
117. I am also well aware that, in the context of this abbreviated hearing, I must be cautious about making pre-emptive findings of fact. However, necessarily because of my protective obligations towards the children concerned in this case, I must make some preliminary assessment of the evidence available to me, particularly in the form of the extensive SAPOL records which have been produced to the court pursuant to section 69ZW.
118. From these documents, it is clear that several members of the police force held grave concerns for the safety of the mother. In addition, although the charges were discontinued, the father was subject to serious criminal charges. Significantly, in my view, the family was the subject of multi-agency attention and, for a period of several weeks, the mother and the subject children were placed in secure accommodation. Accordingly, it is clear that a number of responsible authorities took the mother’s allegations seriously and put in place a considered response to them.
119. An examination of the documents also indicates that at various stages of their involvement with the family, police officers attempted to ascertain the potency of the family violence, which had both been reported to them and which, at least to some degree, had been observed by police officers. This ranking has been, at times, in the moderate to extreme range, as best as I can understand from the evidence available to me. Accordingly, SAPOL have never considered the mother’s situation to be anything other than one warranting their serious attention.
120. As a consequence of these matters, I have reached the conclusion that it is more probable than not that it is the mother, rather than the father, who is the party at the greater risk of being exposed to family violence, particularly if her return to Adelaide is compelled. In this context, I must examine prior arrangements for the children’s care, both before and after January of 2016.
121. The parties are in vehement conflict as to who of them has been the children’s main provider of care in the period prior to their separation. The evidence, currently available to me, tends to suggest that the children are likely to know both their parents well, given the structure of the family prior to January of 2016, which for lengthy periods of time resulted in them sharing the same accommodation. In addition, during periods of separation, the mother took steps to bring the children to the parties’ former home.
122. Accordingly, I accept that, for the children to remain in Sydney, possibly for a lengthy period, has the potential to be highly disruptive of the quality of the relationship, which they have with their father, given that this relationship was sustained by frequent interactions prior to the relocation. This is a significant consideration, given the tender ages of both children but particularly Y, who is not yet three years of age. I appreciate that young children need to frequently refresh parental relationships, through regular contact, to maintain meaning in those relationships. This will obviously be extremely difficult, if not impossible, given the current geographic situation.
123. However, for the reasons already provided, I assess the potency of the family violence allegations made by the mother, which are supported by extensive police involvement, to be a more important consideration for the court, at this early stage of proceedings.
124. In particular, in my assessment, although there is some evidence potentially supportive of the father’s claim that the mother has some level of mental instability, which has led her to fabricate claims of family violence, from which she has later resiled, in my view, this allegation is not firmly supported by the evidence currently available to me.
125. In my assessment, the children’s safety will be maintained if they continue to live in the Sydney area. It is of some significance that the mother and the children concerned have been residing in that city for a period approaching eight months. As such, I accept that it would be highly disruptive for both the mother and the children to return to Adelaide and such a return is likely to pose significant logistical problems.
126. I am required, as one of the additional considerations, to consider the consequences of any change in the circumstances of the children concerned [section 60CC(3)(d)]. The mother speaks limited English. She is in receipt of social security payments. If compelled to return to Adelaide, more likely than not, she would be able to receive some assistance, either directly from government or some other non-government agency, to assist her with emergency accommodation, in such an eventuality.
127. I acknowledge that she has sought such assistance in the past and is likely to be able to do so in future, notwithstanding any linguistic or cultural difficulties, which she has. However, in my view, such a relocation would be very difficult and expensive for her, given her financial circumstances. It is not likely that the father would be either able or perhaps willing to assist her financially to return to Adelaide. Certainly, he has not made any offer in this regard.
128. Again, in my view, given the serious allegations of family violence, this is another factor which militates in favour of the children remaining in Sydney, in their mother’s care, notwithstanding the obvious implications, which such an arrangement has for the father’s relationship with X and Y.
129. I am also required to consider the nature of the relationship the children have with other relations who are significant to them [section 60CC(3)(b)]. In this context, until January 2016, the children shared accommodation with their half siblings A and B. Indeed, the SAPOL documents indicate that, at one stage, A was living with the mother and X and Y in domestic violence accommodation.
130. It is a significant plank of the father’s case that it is not desirable that the half siblings be separated for an extensive period of time. I accept that such an outcome cannot be considered optimal for the children but in my assessment, important though this consideration is, it does not outweigh the significant protective concerns which I hold.
131. This is a case which requires the appointment of an independent children’s lawyer. This is warranted for a number of reasons which include the following: the cultural background of the family; the potential separation of half siblings; the serious allegations of parental deficit made by each of the parties; and the extreme level of conflict, which currently is apparent between them. Such an appointment can be made as easily in South Australia as in New South Wales.
132. Similarly, a family report is likely to be useful to the court. Again, this can be obtained just as easily in either state concerned, although if it is compiled in Sydney and the mother and children remain there, it will be necessary for the father to travel from Adelaide to take part in it as well as A and B, given the significance of their relationship to the two children who are the direct subject of these proceedings.
133. As indicated above, Mr Henry has indicated unequivocally that he will not consider relocating to a place either in Sydney or closer to it in order to be able to spend time with the children more easily. As such, this is not a case which calls for consideration of the probability of one parent moving closer to the other parent and children concerned.
134. In this context, I am required to consider logistical issues relating to the practicality of a child spending time with a parent [section 60CC(3)(e)]. In this context, I accept that in the short to medium term, given Mr Henry’s reluctance to consider moving to New South Wales and his overall financial position, the practical difficulties arising from him spending time regularly with X and Y are very significant indeed.
135. In addition, at this point, the parties are likely to be unable to communicate with sufficient effectiveness to make the necessary arrangements for the children to spend time with their father and A and B, in either Sydney or Adelaide. These difficulties emphasise the stark decision facing the court at this interim stage.
136. However, having considered the various factors arising under section 60CC(2) & (3), I have come to the conclusion that the interests of X and Y will be best served if they remain living in their mother’s care in Sydney, notwithstanding the implications this will have for the level of their relationship with their father and half siblings.
137. I reach this conclusion because of the serious nature of the allegations of family violence made by the mother. I appreciate that the allegations are vehemently disputed and there is, as yet, no irrefutable evidence that the violence has occurred in the manner alleged by the mother, given the withdrawal of charges by police and the fact that no officer is in a position to provide an eye witness account of any incident of violence.
138. However, the absence of independent corroboration does not end the court’s obligation to approach cases involving family violence with extreme caution. Given its nature, family violence more often than not takes place in private and the only direct witnesses to it are the family members concerned in it. As such independent verification that it has occurred is not always available to the court, particularly at an early stage of proceedings.
139. I also take into account the fact that the children have been in Sydney, in their mother’s care, for a reasonably lengthy period of time and are settled, to some extent, in that city. Although I also accept that I cannot infer any level of acquiescence, on the father’s part, from the length of this period. In particular, this is not a case where it will be comparatively easy for the relocating party to return to the place left.
140. I have come to the conclusion, given the significance of the allegations of family violence in this case, that it would not be appropriate, at the interim stage, for the presumption of equal shared parental responsibility to be applied. In addition, I also consider that there are reasonable grounds available to enable me to conclude that significant family violence has occurred in this family.
141. I have not been advised as to when a final hearing, if expedited, can occur at the Parramatta registry of the court. In Adelaide, such a hearing is likely to be able to be fixed in the final quarter of 2017. Given the level of complexity arising in this matter, it also might be one which is appropriate for transfer to the Family Court. Again, I have not been advised as to when that court could accommodate a final hearing, either in Adelaide or Parramatta.
142. However, in my view, the availability of a court to hear the parties competing applications should not pre-empt protective concerns in respect of the children concerned, unless the delay is an inordinate one. There is no evidence available to me to indicate that this would be the case in this matter.
143. Given my conclusion that the children’s best interests are served by them remaining in Sydney pending final hearing, in my view, this is the decisive factor which favours the transfer of the matter to the court’s registry at Parramatta.
144. I will request that the matter be given an expedited hearing and that a family report be prepared as quickly as possible. I will also make an order for the appointment of an independent children’s lawyer by the Legal Aid Commission of New South Wales.
145. Given the rebuttal of the presumption, I will confer parental authority on the mother in the interim. It is appropriate that the orders, earlier made, restraining the children leaving Australia continue. In the absence of concrete proposals, from either party, for the children to spend time with their father, I do not consider that I am in a position to make any order in this regard.