Court grants safety order and limited access while recommending anger management for father.

THE DISTRICT COURT DISTRICT COURT AREA OF WATERFORD CITY DISTRICT NO. 24

A.P.

APPLICANT/RESPONDENT

- AND - B.T.

RESPONDENT/APPLICANT Judgment delivered by Judge Brian O’Shea at Waterford District Court on the 30th day of November 2017

1. There are two applications before the Court. A.P. seeks a safety order as against B.T., and B.T. seeks access in relation to their two children, namely K.T. (aged 13 years) and F.T. (aged 10 years).

2. Initially there was a barring order application that was withdrawn in favour of the aforementioned safety order application. There is also a maintenance application before the Court by way of short service and has been adjourned until 17 January 2018 for hearing. This Court is expressly not retaining seisin of that application.

3. K.T. and F.T. are at the core of these proceedings. The parties were married but are separated. They both work and they are both guardians of both children. At present the children reside with their A.P. in the Waterford area and attend a local school. B.T. now has a different partner. That partner has three children by a third party, two of whom are now adults and also an 11-year-old girl.

4. By way of more detailed background, on 13 April 2010 A.P. successfully applied for a Protection Order. The application was grounded on a sworn information. The information alleges that A.P. was assaulted by B.T. at their home by pinning her to the floor while waving two long bladed kitchen knives while telling her that he would kill her and their two children. The information alleges that A.P. then kicked her, spat at her, and locked her out of the house. During the course of his testimony in the instant proceedings B.T. denied this alleged incident. He stated that it never happened and that he never kicked A.P. “full stop”.

5. On 20 May 2010 A.P. successfully applied for a Safety Order. The Order was granted on consent. It expired on 25 May 2013. B.T. stated in evidence that A.P. wanted the Safety Order and that he consented to it in a effort to keep his family together. He stated that with the benefit of hindsight it was foolish for him to give such consent. He rejected the suggestion that it was self-serving by keeping his behaviour out of the public domain in circumstances where was a serving member of An Garda Síochána.

6. On 20 May 2014 A.P. successfully applied for a Protection Order. The application was grounded on a sworn information that alleged that B.T. verbally threatened F.T., that B.T.

has a temper, and that he was “shouting and roaring” at A.P. when she began to back a bag for her and the children to stay the night at A.P.’s mother’s house. During the course of his testimony in the instant proceedings B.T. denied this alleged incident. Ultimately A.P. did not follow through on an application for a Safety Order, for which a summons had issued to B.T.

7. On 23 November 2015 A.P. again successfully applied for a Protection Order. The application was grounded on a sworn information. It alleged that B.T. was “very verbally abusive” towards A.P. in front of the two children to such an extent that she felt compelled to telephone the gardaí. During the course of his testimony in the instant proceedings B.T. denied this alleged incident. Ultimately A.P. did not follow through on an application for a Safety Order, for which a summons had issued to B.T.

8. In each instance where A.P. did not pursue a Safety Order, having secured a Protection Order, she stated the reason being that she weighed up in her mind the possibility of B.T.

losing his job and/or going to prison and she decided to withdraw. There was no evidence of any duress by B.T. in this regard.

9. On 8 August 2017 A.P. again successfully applied for a Protection Order. The application was grounded on a sworn information. It alleged that on 27 July 2017 B.T. became verbally abusive towards K.T. He then drove to Tramore garda station and left the children unattended in his car while he went into the garda station. During the course of his testimony B.T. denied driving at excessive speed. A telephone conversation had occurred during the drive to Tramore as a result of which both children got out of the car on arrival at the garda station. When A.P. arrived she put the children in her car and left. This version of events was confirmed during A.P.’s testimony although there was a conflict on the evidence as between A.P. and B.T. regarding whether or not B.T. drove away from the station before or after A.P. A.P. went on to state that she is “terrified” of B.T. and the children are “really scared of him”.

10. Under cross-examination in relation to the incident that occurred on 27 July 2017 A.P.

accepted that the children had been left alone for a period of about 10 minutes between the time her brother left them and B.T. arrived to collect them as planned. She stated the reason her brother left was because he does not wish to have any dealings with B.T.

11. During the currency of the instant proceedings A.P. confirmed that the content of her sworn information of 8 August 2017 is true and accurate. She effectively asserts that this incident was the “final straw” and that she felt compelled to make the application that she did.

12. In addition to the evidence surrounding the trip to Tramore the information also alludes to an allegation made by A.P. to the effect that B.T. “has a history of being violent” towards her and “has always been verbally aggressive and verbally abusive to both the children and I”. The information further alleges that the children told A.P. that they are afraid of B.T.

13. During the course of her testimony in relation to the information dated 8 August 2017 A.P. stated that B.T. had been “very violent”. When asked what she meant by this she recounted two separate incidents in 2011. She stated that on one occasion B.T. kicked her repeatedly in the legs and on another occasion pinned her to the kitchen floor and while holding two knifes told her that he would kill her but kill her children first. To reconfirm, B.T. denies that these incidents occurred at all.

14. In relation to this incident on 27 July 2017, B.T. states that he became concerned that this was not the first time the children were left alone. He states that when he arrived to collect the children he met his son walking at a distance of about 25 to 30 feet away from the curtilage of the home. Shortly after he arrived he had a discussion with K.T. and asked her to remove her make-up before travelling to Tramore for a day out at the amusements. He considered that what she was wearing was overly excessive and stated that he had no objection to her wearing less make-up, although there is no evidence as to whether he informed her of this view, or indeed whether he had the opportunity to do so.

He says K.T. became enraged, stormed upstairs, and became abusive. It stuck in his mind that she called him a “spastic of a human”. She told him to get out of the house to which he responded by telling her, in the presence of F.T.: “If I have to leave the house I will have to ring the gardaí as ye will be left alone.” B.T. accepted with the benefit of hindsight that he should not have said this to K.T. For some reason, by the time they arrived at Tramore K.T. was stamping her feet on the floor of his car. He could not confirm whether this was owing to the argument over the make-up or because she had subjectively concluded that the purpose of the trip to Tramore was in part to report A.P.

to the gardaí. He stated that the reason he drove to the garda station was to collect and item of sportswear that he had ordered online, but he could not expressly recall whether he informed the children of this, although he believed he had done so.

15. There has also been evidence by both parties concerning conversations they had with the garda superintendent at Tramore garda station and with various persons from the Child and Family Agency. Nothing much turns on any of this as those persons are not before the Court and in any event the Court is satisfied on the balance of probabilities that much of this resulted from the parties positioning themselves for the best possible outcome for themselves rather than out of any real sense of despair and or genuine alarm.

16. This case must be decided on the facts established on the balance of probabilities from the evidence that the Court has heard. The court does not have to be 100% certain before making findings of fact, nor does it have to be satisfied beyond reasonable doubt;

a finding on the balance of probabilities will suffice. In arriving at its decisions in this case the court has had the advantage of hearing not only what was said but also how the witnesses gave testimony. The court has closely observed the demeanour of the witnesses and their reactions to questions and allegations put to them, but also the court has noted the answers themselves and the manner in which those answers were provided. In circumstances where there was such divergent evidence this was a very important feature of the case.

17. Turning to the Safety Order application. It is not in issue that A.P. is a person entitled to apply for a Safety Order. She undoubtedly meets the criteria by virtue of section 2 of the Domestic Violence Act 1996, as amended. Subsection 2(2) of the 1996 Act dictates that in order to grant the relief sought the court would need to be of the opinion that there are reasonable grounds for believing that the safety or welfare, physical and/or psychological, of A.P. or K.T and/or F.T. requires the order. The fact that an order, if granted, would direct the B.T. (in circumstances where they do not reside together) not to use or threaten to use violence against, molest or put in fear A.P. or K.T and/or F.T., suggests that the court would at least require evidence of behaviour of that nature in order to ground the application at all. This court is of the opinion that it is a serious matter to grant a Safety Order, and it should not be done lightly. Likewise, it would be a serious matter not to grant the relief sought where it was clearly warranted.

18. Having had regard to all of the evidence on this issue the Court is satisfied that there is a history of violent behaviour by B.T. towards A.P. such that she is terrified of him. I accept that he has a bad temper and that she does not know what he is likely to do next.

I accept, on the balance of probabilities, that the incidents alleged in informations and confirmed in her testimony did in fact occur, or at least occurred in a manner that it so close to what is alleged that it does not matter. This history has been intermittently ongoing since 2009 right up until the present time. I have heard no evidence in relation to the children that is even close to being within the realm of what has happened to A.P.

and therefore this Court will grant a Safety Order in favour of A.P. only as against B.T.

The Order will remain in force until 29 November 2020.

19. Turning to the access application. In addition to all of the other legal matters that the court must consider, and has considered, section 31 of the Guardianship of Infants Act 1964 as inserted by section 9 of the Children and Family Relationships Act 2015 mandates that in deciding what is in the best interests of a child the court must have regard to all of the factors or circumstances that it regards as relevant to the particular child concerned and to his or her family. These include, but are not limited to a significant number of matters set out at paragraphs (a) to (k) of subsection 31(2). One such important factor is the views of the child(ren) that are ascertainable. During the course of the instant proceedings the court inquired of both parents as to their views regarding the court discussing matters with the children in order to ascertain their views. It was suggested by the court that the K.T. and F.T. would be interviewed together without either parent or solicitor present. The logic being that the children would provide support for each other and could discuss matters without legal or parental intervention. Both parents and legal representatives agreed with this course.

20. As this meeting took place the day after the A.P. and B.T gave their testimony both parents were required to undertake not to speak to the children about the evidence they had given or to try to influence them in terms of what they might say to the court regarding preference they might have. Both parents were warned by the court that any attempt to influence what the children might say could amount to contempt of court, with imprisonment as a potential sanction. It appeared to the court that both parents took the warning seriously and would be highly unlikely to breach their respective undertakings. Having spoken to K.T. and F.T. the court is satisfied that no such attempt was made.

21. Accordingly, the court met with both children together in chambers. This was conducted in an informal way, but nonetheless in a manner that allowed the court to glean information that was relevant to its decision-making process. Both children were well presented and neatly dressed. They were both comfortable in their surroundings, chatty but respectful, and very willing to discuss all of the matters that were raised by the court.

They are evidently intelligent beyond their years and are able to articulate their views and opinions without any want of vocabulary. They have a greater insight into their parents’ circumstances than perhaps their parents realise. As a result of the meeting with the children the Court has made the following findings of fact:

1. In broad terms, the children are happy and healthy and they enjoy school.

2. The children love both parents very much but find their father’s anger and aggression difficult to bear. They rate is ongoing anger at 7 out of 10.

3. Both children would prefer to see their father for multiple short periods rather than a single lengthy period. Their reasoning is that he is less likely to become angry over a shorter period and more likely to cherish his time with them.

4. The children opposed the idea of overnight access to B.T. whether or not his girlfriend is present. They have a daily routine that they do not wish to upset and they opine that there are too many variables associated with staying overnight with B.T.

5. In the short term they have no desire to get to know their father’s partner or her family. B.T.’s partner did enter their bedroom brandishing a box of “Celebrations”

sweets and attempted to introduce herself to the children. They found this unusual and although they felt it might appear rude they decided it would be better if they did not speak to her.

6. The children state that their father becomes angry all the time over the most minor issues and they both recounted times when they were in fear of him.

7. F.T. regularly becomes upset because of anger shown to K.T. by B.T. He finds this hard to bear and it overcomes his emotions.

8. The children are of the view that their father drives too fast all the time, and that his car is an inherently fast car with an indicator that informs the driver when there are flames emitting from the exhaust pipe.

9. Both children considered that the reason for the trip to the garda station on the date that they were supposed to go to the amusement arcade at Tramore was to report their mother for leaving them alone. They formed this view in light of the utterance made by their father to them before they left the house. They are both confident that there was no mention made by their father about any item ordered online that required to be collected at Tramore garda station. The reason they know this to be the case is that it would have prevented them becoming upset.

22. Before continuing, the Court accepts the point properly raised by Ms Eivers that it would be inappropriate to consider any view expressed by the children in relation to the Safety Order application as neither she nor her colleague would have an opportunity to test the veracity of those views. Consequently, the court will only take the views of the children into consideration in deciding upon the issue of access.

23. In addition to hearing from the children on the issue of access the court has heard testimony from the A.P. who was cross-examined. The court has also heard from the B.T., who was also cross-examined. It is certainly the case that both parents love their children, but it is also apparent that they sometimes fail to see with clarity what is in the children’s best interests, because they occasionally view matters through the prism of their own interests. However, rather unusually in cases of this nature there is a significant degree of agreement between the parties. A.P. acknowledges that both children need to have access to their father. She states that this is particularly so in the case of F.T. She stated in evidence that “the children may want a relationship with their father but not with his new girlfriend and her daughter”. She suggests that while the children need access to their father it should be undertaken on an incremental basis.

She states that the children may resist access.

24. At this time B.T. seeks one day of unsupervised access and accepts that an increase must be on an incremental basis. B.T. works irregular hours but is aware of his work-related shifts about three weeks in advance.

25. The court’s decision in relation to the access application is based on an assessment of the evidence received to include the examination and cross-examination of the witnesses, the information obtained from the children, and the application of the relevant law to that evidence. The court has also had regard to the various arguments and submissions made by the respective legal representatives throughout the process.

26. The court will grant access to K.T. and F.T. by B.T. on the following terms:

1. Access will occur on one day each week for a continuous period of 2 hours.

2. The access will be at a time when both children can have access together.

3. B.T. will collect the children either after school or at A.P.’s house as the case may be.

4. Interaction between B.T. and A.P. will be kept to a minimum at the point of collection and if B.T. states or does anything threatening, insulting or abusive to A.P. even to the slightest degree it may amount to contempt of Court, which will give rise to a potential sanction separate altogether from any breach of the Safety Order already granted earlier today.

5. Each week B.T. will post his work schedule to A.P. and she will indicate the date and times upon which access will occur having regard to the timetable, which she will return in a timely manner to B.T. by post. It follows that the sooner the schedule is sent the sooner access can be confirmed. This will enable forward planning in terms of the access but also in terms of both parties’ private lives.

6. Access must be reasonable and must not be decided in such a manner as to prevent B.T. from having anything other than the full amount of access already indicated.

27. It is anticipated that B.T. will enjoy more extended access in the near future. In particular the Court would envisage access increasing to two 2-hour accesses after a period of 2 months, and perhaps a third 2-hour access after a further 3 months.

28. The reason access is restricted at the moment is of B.T.’s own making. The Court is of the opinion that he has anger management issues that he should accept and must address. As a father it behoves B.T. to begin to acknowledge his anger management issues. It is not part of the Court’s order but it is a recommendation that he undergo, at his own expense, an anger management course. This would serve a number of functions. Firstly, it would improve his relationship with his children – not every parent finds it easy to raise young and teenage children but displaying emotional stability in the face of there apparent adversity is crucial. Secondly, it would make the granting of the Safety Order less of a source of concern to B.T. in terms of the potential for falling foul of it, but more importantly it would provide some comfort to A.P. in terms of reducing the likelihood of her needing to rely upon the Order. Finally, it would show a good faith basis upon which matters could move forward and would undoubtedly act as a catalyst for increased expedited access.

29. The Court Order is not to be viewed as restrictive in the sense that access in excess, but never short, of the Court Order may be agreed between the parties but, for the avoidance of any doubt, such additional access is at the absolute discretion of A.P. and may be withdrawn by her without cause.

30. On the basis that the Court has set out a future anticipated path for this case, and on the basis that the assigned Judge of the District Court will hear the maintenance application, the Court can see no obvious reason why it should retain seisin of this case, and so it does not.