Aria &Weller
[2023] FedCFamC1F 403
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aria &Weller [2023] FedCFamC1F 403
File number: PAC 5048 of 2019 Judgment of: BRASCH J Date of judgment: 22 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the parties entered into final consent orders on most parenting issues – Where two discrete issues remained in dispute – Where mother and ICL sought orders for a Personal Protection Order and passports/international travel orders in favour of the mother - Where the father opposed the orders sought by the mother and ICL – Where the father sought further orders not limited to the discrete issues in dispute – Orders made permitting the mother to obtain a passport and travel internationally with the child – Personal restraint orders made for the personal protection of the mother and child
FAMILY LAW – PRACTICE AND PROCEDURE – Where the intervener sought leave to withdraw from the proceedings – Intervener granted leave to withdraw from proceedings
Legislation: Australian Passports Act 2005 (Cth) s 11(b)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 65D(1), 65DAB, 65Y(1), 68B, 68C
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.05
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Hall (1979) FLC 90-713
Line & Line (1997) FLC 92-729
Marsden & Winch (No. 3) [2007] FamCA 1364
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Re F (Litigants in person Guidelines) (2001) FLC 93-072; [2001] FamCA 348
Rice & Asplund (1979) FLC 90-725
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 118 Date of last submissions: 21 May 2023 Date of hearing: 19 May 2023 Place: Sydney Solicitor for the First Respondent: Phillip A Wilkins & Associates The Second Respondent: Litigant in person Solicitor for the Intervener: Crown Solicitors Office Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
PAC 5048 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WELLER
First Respondent
MR ARIA
Second Respondent
DEPARTMENT OF COMMUNITIES & JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
22 MAY 2023
THE COURT ORDERS BY CONSENT THAT:
1.The Independent Children’s Lawyer will consider the father’s letter to the child X born in 2010 (“the child”), attached to his Minute of Order, and if the Independent Children’s Lawyer in her discretion, considers the letter to be child focused and appropriate, then she will provide it to the child when she meets with him, to explain the outcome of these proceedings.
THE COURT FURTHER ORDERS THAT:
2.The intervener, the Secretary New South Wales Family and Communities, is granted leave to withdraw as a party to these proceedings pursuant to rule 3.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Personal restraints
3.Pursuant to s 68B of the Act the father is restrained by injunction from the following:
(a)Contacting or attempting to contact (including but not limited to via social media or through a third person) the mother and/or the child;
(b)Doing an act or thing in order to locate or attempt to locate the whereabouts of the mother and/or the child;
(c)Entering or approaching within 200 metres of the mother and/or X;
(i)Any educational institution the child attends; and
(ii)Any venue where the child is participating in extracurricular activities.
4.That the above order is an order made for the personal protection of the mother and the child, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.
5.The s 68B order made for the personal protection of the mother and the child will remain in place and in force until the child turns 18 years.
Passports and International Travel
6.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child X born in 2010 be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document” as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
7.The mother shall be entitled to seek the Australian travel document to issue without the written consent of the father and it is requested that an Australian travel document issue for the child notwithstanding the father’s refusal or failure to provide his written consent.
8.Any requirement for the signature or consent of the father be dispensed with and the mother is at liberty to do all acts and sign all documents necessary and have such authority as is necessary, pursuant to s 11(b) of the Australian Passports Act2005 (Cth) to procure a valid Australian travel document for the child without the signature or consent of the father, including that the mother is authorised to sign all documents on behalf of the father.
9.The child’s Australian travel document shall be held by the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
BACKGROUND
These are my ex tempore reasons. I will correct the transcript for grammatical errors and to make the spoken word more amenable to reading.
The parenting proceedings concern the child X (“the child”), who was born in 2010. The child last saw the father in early 2019. Final consent orders were made by a Justice of this court on 23 March 2023, including that the child live with the mother and have no time with the father. A sole parental responsibility order was made in the mother’s favour.
The mother is Ms Weller born 1987 (“the mother”). The father is Mr Aria born 1986 (“the father”). In 2007, the mother and father (“the parties”) commenced a relationship. Looking at the father’s affidavit filed 23 November 2021, paragraph 3, the mother and father spent only a few months living in the same residence.
In early 2019, the father was charged with various violent and sexual offences against the mother. He was remanded to jail and ultimately released on bail.
Around the time the father was charged, the mother and child moved to temporary accommodation with the assistance of support workers. They stayed in temporary accommodation for a few months in New South Wales and interstate. The mother makes many allegations of family violence against the father. The father denies all and in submissions repeatedly called the mother a liar.
In mid-2019, the child’s school made reports that he was detailing graphic descriptions of domestic violence and writing obsessive letters to female peers.
On 15 October 2019, the paternal grandparents filed an Application for Final Orders in the Federal Circuit Court of Australia (as it was then). The applicant paternal grandparents have since withdrawn from the proceedings. The Notice of Discontinuance is dated 1 June 2021.
Dr C summarises the events that occurred thereafter commencing at paragraph 14 of his report:
In [late] 2019, the mother reported that [X] disclosed a sexual assault allegedly perpetrated against him by the PGF. The father purports that this was an escalation of lies targeting the PGPs due to their initiating proceedings in the family court. [X] agreed this was a result of the initiating of proceedings, describing that he disclosed the events to his mother in explanation of his fear for potentially being returned to the PGPs care.
On 19 December 2019 sole parental responsibility (PR) for [X] was granted to the Minister with the child to live with the mother and have no contact with the paternal family (including the paternal uncle).
On 26 January 2020 an alternate assessment by Joint child protection response program (JCPRP) concluded that actual harm alleged by the mother and [X] was substantiated and that the mother had been engaging appropriately with DCJ. The JCPRP assessment concluded that given actual harm to the mother from the father was considered substantiated it was unreasonable to consider the PGPs were unaware of this, and thus their denial of these allegations undermined the veracity of their position. The JCPRP also concluded that the PGPs were likely to be lying for [Mr Aria]. This also gave further merit to [X’s] allegations against the PGF. This matter was placed on the Magellan protocol on 28 April 2020.
On 1 June 2021 the applicant PGPs discontinued from the matter. This occurred following the father being found guilty of one [offence] (out of [several] charges) […] and receiving a Community Corrections Order (CCO). [Mr Aria] reports the financial cost of the family proceedings had forced the PGPs to discontinue from the matter and the conclusion of his criminal trial meant that it became more appropriate for him to take over as primary applicant.
(Family Report of [Dr C] dated 21 March 2022, paragraphs 14-17)
The Department of Communities and Justice (“the Department”) filed a Notice of Intervention on 17 December 2019. Both the mother and father filed Responses to Final Orders in 2020.
The child has been represented by the Independent Children’s Lawyer (“the ICL”).
The father’s affidavit at paragraph 22 indicates that in mid-2021 the father commenced serving a Community Corrections Order. He was sentenced to that Order arising out of a conviction of an offence against the mother. As the father says at paragraph 33 of his affidavit, he was acquitted of many more charges.
On 25 January 2023, the parties attended a mediation and reached substantial agreements. On 23 March 2023, Final Consent Orders were made by the Court, but a different Justice to me. At the hearing on Friday just gone, the father was at pains to tell me that that Justice had just signed the orders and did what the Single Expert said. I do not accept that. As I indicated to the father a number of times, that Justice was required to consider whether the proposed consent order was in the child’s best interests. I reject any notion that the Justice simply rubberstamped the orders as the father contended.
Those Final Consent Orders provided that:
·The child live with the mother;
·The mother have sole parental responsibility for the child;
·The child spend no time with the father;
·The mother and any person acting on her behalf is restrained by injunction from denigrating the father and paternal grandparents and discussing the proceedings with or in the presence of the child;
·The mother attend her General Practitioner and obtain a Mental Health Assessment and engage with appropriately qualified specialists;
·The mother follow the advice of treating professionals;
·The mother remain engaged with the Department and comply with all recommendations;
·The mother enrol and participate in the Tuning into Teens parenting program; and
·Obligations under s 62B and 65DA of the Family Law Act 1975 (Cth) (“the Act”) were spelt out.
The order made by the Justice on 23 March 2023 included the below notation:
A. The Court has been advised by the ICL that the following outstanding issues require judicial determination:
•Whether orders should be made for a regime of drug testing upon the mother;
•Whether restraints should be made on the father communicating with or approaching the mother;
•Whether leave should be granted for the mother to provide a copy of the expert’s report to her mental health treater;
•Passports and travel.
Discrete issues
The matter first came before me for mention on 18 April 2023. On that occasion all parties agreed that the matter would proceed to final hearing by way of submissions only on 19 May 2023. Thus, consideration of s 102NA of the Act was not required.
By the conclusion of that April mention, the father agreed to not pursue the drug testing order. The following orders were also made dealing with another issue in dispute:
1. Pursuant to section 121 of the Family Law Act 1975 (Cth), the Mother is permitted to provide a copy of the single expert report by [Dr C] dated 21 March 2022 (‘the report’) to her treating health practitioners.
2.The mother is restrained from showing, allowing or permitting access to the report, to [X] or any other person other than health practitioners, in any form whatsover.
(Orders 1 and 2 of the orders made 18 April and Amended 21 April 2023)
The order referred the parties to the overarching principles, and listed the matter for final hearing on Friday just gone; that is 19 May 2023. I also required the father to file and serve a Minute of Order he sought and made the following notations:
THE COURT NOTES THAT:
A.The father ought have regard to the consent orders made by Justice Hannam on 23 March 2023, and understand they are final orders, with which the Court will not interfere.
B.In so far as to the discrete issues outstanding, the court is advised they are the following:
i.Whether restraints should be made on the father communicating with or approaching the mother; and
ii.Whether the mother be permitted to apply for a passport and travel with [X].
C. The parties advise the Court that cross-examination will not be required at the hearing on 19 May 2023, and therefore section 102NA is not required to be considered.
…
As set out in Notation B, the following discrete issues were left for determination before me:
·Whether restraints should be made on the father communicating with or approaching the mother; and
·Whether the mother be permitted to apply for a passport and travel with X.
The father did file the Minute of Order as required but unfortunately did not serve it on the other parties. I read his Minute to the three other parties whilst my Associates arranged for copies to be provided. The legal representatives for the Department and the mother, and the ICL did not take issue with the late receipt of this document or, at least, the late receipt by them. I accept what the father said, being that he had been agitating these issues for some time and the other parties would have been well aware of his issues.
The father’s Minute went beyond the two discrete issues in dispute. Nevertheless, as a litigant in person, I worked through the Minute with the father and the parties.
I struck out a number of orders in the father’s Minute for the reasons given on Friday. In short, Orders 3 and 9 were directed at the Department and how they conduct themselves in the future. Order 4 was directed at “an appointed Personnel, DCJ, social worker, police officer ...”. I cannot tell the Department how to do their job, nor can I make orders against non-parties such as the police and unspecified persons. I also struck out Order 6 as it was not directed at anyone.
The father agreed Orders 1, 5 and 10 were no longer necessary given the consent order I will make about the ICL considering a letter the father had written to the child, and if thought appropriate, would give it to the child when the ICL meets with the child to tell him the outcomes of the proceedings.
Despite being beyond the scope of the discrete issues in dispute, I allowed the father to press Orders 2, 7 and 8. Order 2 was to the effect that the child spend time with the father in accordance with the child’s wishes and at the child’s discretion. Order 7 was that the child’s name be placed on the airport watch list, and Order 8 would restrain the mother from changing the child’s name.
At the start of the hearing on Friday, I advised the father how the hearing would occur consistent with the guidelines in Re F (Litigants in person Guidelines) (2001) FLC 93-072.
Material
The Final Consent Orders made 23 March 2023 and my orders of 21 April 2023 were before me.
The mother relied upon:
·Her Affidavit filed 31 January 2020, paragraphs 32 to 35 and Exhibit A; and
·Her Response filed 31 January 2020 and in particular Order 5, which sought the Personal Protection Orders.
The father relied upon:
·The Minute of Order to which I have already referred;
·His Affidavit of 23 November 21 which is 34 pages long and has 18 annexures;
·An Affidavit of Ms B filed 7 December 2021, which contained observations of the father, the mother and the child. For a period of time this witness babysat the child; and
·The father also made expansive and eloquent oral submissions. However, one page of his submissions was missing and I asked the father to email the missing page to my Chambers copying the other parties. The father did not, in fact, send the one missing page. Instead, on Sunday, being yesterday, at 1.09 am the father sent to the Court a document that is 17 pages long but said to be the missing page and an additional four pages as well. I have read it all. It contains the same kinds of themes, which I will refer to later when I address the father’s submissions. However, it attaches some documents including:
·Social media reviews of Dr C;
·an Advice of Court Result;
·A Transcript of the Crown Prosecutor’s submissions;
·An extract of proceedings on 5 November 2018 in the Suburb D Local Court highlighting, as the father would say, the mother’s many lies;
·A document pertaining to the Proceedings after Conviction; and.
·an audio called “Good Father [Ms Weller]”.
The ICL relied upon the Affidavit of the Single Expert Dr C dated 5 April 2022.
The Intervener filed an Application in a Proceeding and affidavit on 18 May 2023 seeking leave to withdraw. The father wished the Department to remain in the hearing as he sought orders directed at them. As said though, I struck out the orders, which were essentially telling the Department how to do their job and imposing requirements on them, for example, to pass along letters to the child.
The Department’s position was that they had no child protection concerns for the child in the mother’s care, and, had not received any child protection ROSH (Risk of Significant Harm) Reports with respect to the child.
After I worked through the father’s Minute of Order and struck out those orders that were directed at the Department and how they conduct themselves into the future, I granted the application to withdraw.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
The orders sought by the mother
The mother sought an order pursuant to s 68B of the Act restraining the father by injunction from approaching or contacting the mother and/or child. The mother’s Response included the then applicant paternal grandparents in the Order. As they are no longer parties, I cannot make any orders directed at the paternal grandparents.
The mother also sought an Order the child be permitted to travel outside of Australia. The mother sought an order she be allowed to obtain a passport/renewal for the child.
The mother opposed the orders sought by the father.
The orders sought by the father
I have already referred to the father’s Minute of Order. As said, the father sought orders that: the child spend time with him as the child wished and in the child’s discretion; the child’s name be placed on the airport watch list; and, the mother be restrained from changing the child’s name. They were the orders that survived after either three orders the father accepted were no longer needed or other orders were struck out for the reasons I have already given.
The orders sought by the ICL
The ICL supported the two orders sought by the mother being the s 68B restraints and travel and passport orders. The ICL opposed the orders sought by the father.
The orders ought by the intervener
As I have already indicated, I eventually acceded to the Department’s application to withdraw from the proceedings.
Parenting proceedings – Legal principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans). Both are irrelevant here. Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court give greater weight to s 60CC(2)(b). That is, the need to protect the child from harm.
The Court must also have regard to the “additional considerations” in s 60CC(3) of the Act to consider how they should give effect to either or both of the primary considerations in order to determine the children's best interests. However, I only need consider those which are relevant.
The Act does not mandate the discussion of considerations under s 60CC in any particular order. It is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3) (see Aldridge & Keaton (2009) FLC 93-421 at [74]; Mulvany & Lane (2009) FLC 93-404 at [84]; Champness & Hanson (2009) FLC 93-407 at [101-103]; Marsden & Winch (No. 3) [2007] FamCA 1364 at [76-78]).
Indeed, on the discrete orders in dispute not many of the s 60CC factors are engaged in this matter.
The primary s 60CC(2) considerations that a child ought have a meaningful relationship with both parents so long as it is safe, have been captured by the Final Consent Orders that the child live with the mother and have no time with the father. The same applies for s 60CC(3)(e), (f), (i), (j) and (k). I will however consider the father’s Minute which seeks the child have time with him as the child wishes as a discrete issue below. I will also consider the father’s name order, similarly, as a discrete issue below.
I will consider the child’s views (s 60CC(3)(a)) and the nature of the child’s relationship with the father (s 60CC(3)(b)) in relation to the Personal Protection Order and the father’s order the child spend time with the father as the child wishes and at the child’s discretion.
The father consented to a sole parental responsibility order in favour of the mother and a no contact order. The child has not seen the father since early 2019. Pursuant to s 60CC(3)(c), that means that despite the father’s clear hopes for some kind of relationship with the child, the father has not and will not have the opportunity to: participate in making decisions about major long term decisions in relation to the child; spend time with the child; or, communicate with the child.
I consider s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances – under the father’s time with order.
I know nothing about s 60CC(3)(ca), (g) and (h). Nothing turns on these considerations in any event when determining the issues before me.
As for s 60CC(3)(l), of course it would it be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. Yet, that does not mean I capitulate to what a party wants. Rather, I must make orders in the best interest of the child.
Passports and international travel
In circumstances where there are parenting proceedings in force relating to the parental responsibility for a child, or the time a child is to spend with a person (including no time), then, s 65Y(1) prohibits a party to proceedings in which that order was made taking the child outside of Australia unless permitted to do so under s 65Y(l)(c)(i) or (ii).
The Full Court in Line & Line (1997) FLC 92-729 (“Line”) held that I am required to assess the degree of the risk of the departing parent leaving and, despite assurances, not returning to the Commonwealth. In assessing the degree of risk, the obvious considerations are the existence, or not, of the ties of the departing parent to Australia. For example, the ownership of real estate, business interests and close family and friends. However, authorities such as Line, and those like it, are in the context where the non-departing parent is having time with the child. Thus, considerations about future travel is a consideration as to whether that time would be thwarted should a parent not return. That is not the case here.
The decision in Line also tells me that an important matter to consider is whether the country is a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). That said, I have to keep in mind that a party may tell the Court or seek permission to go to a Hague country but, then, use that as a launching pad to go to a non-Hague country. Again, consideration of the Hague Convention is in circumstances where a parent’s failure to return would thwart the child having time with the other parent.
Here, the father has agreed to a no contact. Thus, if the mother and child go overseas and do not return (not that there is any evidence that the mother is a flight risk), that will not affect any orders for time between the child and father.
Personal restraints
The mother sought an order pursuant to s 68B of the Act restraining the father by injunction from approaching or contacting the mother and/or the child.
Section 68B of the Act permits this Court to make such order or grant such injunction as it considers appropriate for the welfare of a child, including the personal protection of the child. Section 68B of the Act provides:
68B Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The mother also sought an order under s 68C. Section 68C of the Act provides that a police officer may arrest a person (in this case, it would be the father) without a warrant:
68C Powers of arrest
(1) If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii) harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
Note: Section 122AA authorises the use of reasonable force in making an arrest.
(2)For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
...
Submissions
With respect to the Personal Protection Order, the mother submitted that she had had the benefit of an ADVO due to the father’s violence. It was said that she was and is frightened of the father. I note the mother did not attend physically in Court on Friday. The mother’s legal representative was unsure if the ADVO was still in place. This highlighted, the mother’s legal representative said, why she sought the Personal Protection Order - ADVOs expire. Parties are then put to the trouble and expense of applying again and hoping to secure a further order. However, Personal Protection Orders can be ordered on terms, including, for example, until the child turns 18.
As for travel, the mother submitted that she has sole parental responsibility and the father has no time. Accordingly, there was no sufficient reason to prevent the mother from travelling with the child. For that, she would need, of course, a passport for the child.
With respect to the father’s order for time according to the child’s wishes and discretion (father’s Order 2), the mother submitted that the father’s proposal was at odds with the no time order that has been made. Order 7 sought by the father conflicted with the mother’s position that she be able to travel. It was said there was no evidence that would warrant making an airport watch list order. With respect to the father’s Order 8, it was submitted by the mother that in all likelihood she would not be able to change the child’s name simply with a sole parental responsibility order.
The ICL supported the submissions made by the mother. The ICL highlighted the history of violence in this matter and that the father was convicted of an offence against the mother. That, it was submitted, supported making the Personal Protection Order.
The ICL took me to paragraphs 165 and 170 of Dr C’s report where the child has threatened self-harm if he is forced to see the father.
As for travel, the ICL said there was no evidence before the Court that the mother was a flight risk. She highlighted that with the mother having sole parental responsibility, and I infer no time for the father, then she ought be able to travel.
The ICL did not support the father’s Order 2, as a no time order is in place. The ICL also did not support the airport watch list order, which is hardly surprising given she supported the mother’s ability to travel out of the Commonwealth of Australia with the child and secure a passport. As for Order 8, being the name restraint, the ICL indicated it was not a live issue – the sole parental responsibility order would, in all likelihood, be insufficient for the mother to change the child’s name if she wished.
On the name issue, both the mother and ICL submitted that if the mother was restrained from changing the child’s name and the child chose to be known by another name, then the mother would potentially be in breach of the restraint. It was submitted that that could be an unintended but detrimental consequence.
The father read from a well thought out, considered, and eloquent document. I have also had the benefit of reading his further 17 pages. I noticed his parents were in the back of the court and at times were brought to tears by the things he submitted.
The father made many submissions and I will do my best to summarise them here. With respect to the Personal Protection Order he said the ADVO had been in place for some time and he had never breached it. That included when he knew the mother’s address. He said the mother lives in a different location now and he does not know where that is. He said the ADVO had been withdrawn (but I think he perhaps meant terminated or rescinded) over one year ago.
The father highlighted that he had always complied with all orders to which he had ever been subjected. That included the ADVO, bail conditions and other orders.
The father submitted that as the state courts had rescinded the ADVO then I should therefore follow suit and not make a Personal Protection Order. That however confuses two different courts serving two different purposes. I am concerned with the child’s best interests. That is not the test that is applied in state domestic violence proceedings. It does not follow that if the state court rescinded the ADVO that I should follow and not make the Personal Protection Order.
I was told a lot about police abusing their power. I was told that the father wants nothing to do with the mother. The father submitted there was no reason at all for the injunctions and they were harsh on him. His submissions in this part of the hearing were very much about him, what he considered to be false allegations made against him, and the effect of that on his health and weight.
With respect to the passports and travel, the father submitted that if the Department was serious in their monitoring of the mother, then the mother would not be allowed to leave the country with the child. He also submitted that if the child went overseas he would lose the child “forever”, even when the child was over 18. I pause to observe that the child will be at liberty to do whatever he wants to do, including finding his father, or not, when he reaches his majority at 18 years of age. For all I know, the father still lives in the same house, with his parents, when the child lived with him in for a considerable period. If that is so, the child will have good place to start looking, if he so chooses when he is older.
With respect to his Minute of Order, the father told me a number of times, and I accept, that having a letter sent to his son is the most important thing to him. He said he would be content if his order about the letter was granted. As indicated, I will be making an order by consent that deals with his proposed letter. It will be entirely in the ICL’s discretion whether that letter is passed along.
The father told me a number of times that he was pressured into signing the Consent Orders. He also told me that he genuinely thought the Consent Order was just an outline or recommendations. It is somewhat trite to say the courts make orders, and, orders are not recommendations. Rather they are solemn obligations imposed upon people to do things, or not do things, and in family law proceedings, to regulate familial relationships.
It is not for me to resolve whether the father signed the orders due to pressure. I do not even know who allegedly exerted the pressure upon him and how. The father’s submissions that he thought the orders were an outline or recommendations and that he could still argue time is at odds with the very clear notations made on the Final Consent Order that there were four issues in dispute - none of which included the child spending any time with the father. Nevertheless, as indicated, I gave the father indulgences in this regard.
The father also submitted a number of times that he wanted the other parties’ help to put his issues before the earlier judge. The legal representatives for the other parties are not his advisors. In any event, the father signed the Consent Orders.
I, as said, indulged the father’s Minute and worked through it with him. I have already set out which orders I struck out, which he no longer pressed and the three I allowed him to argue.
I have already referred to the submissions that the other Justice just signed off on the orders. I reject those submissions.
Understandably, I heard much from the father about his involvement with the child until the child was about eight or nine years old. I heard about the love and care he had for the child, and, what and how they would interact with him.
Conversely, I heard much about the mother’s neglect of the child and her abuse. I heard she drank alcohol and smoked when pregnant. I heard she gambled. I was told a number of times that she is a liar and cannot be trusted. However, it remains that the father signed the Final Consent Order that the child live with the mother.
The father in his submissions was very critical of Dr C, the Single Expert. The father said he wanted to cross-examine Dr C, but acknowledged he did not have the funds for the doctor to attend court. He also agreed to the matter proceeding by way of submissions. Many submissions were made about the failings in Dr C’s report, including who he interviewed, what he read or did not read, and that he did not watch the father’s USB of videos of father and child.
I tried to highlight for the father that Dr C is not the decision-maker. As was said a long time ago in the decision of In the Marriage of Hall (1979) FLC 90-713 (“Hall & Hall”) “there is no magic in a family report”. Authorities since Hall & Hall have very clearly identified that it is for the judge to make the decision and Experts cannot usurp that decision-making role. That said, family reports often contain very useful opinions and can be very helpful in matters, but ultimately it is for the judge to decide what is in the child’s best interests on the totality of the evidence.
The father stressed that the mother’s affidavit material was filled with lies, but again, he entered into a Final Consent Order that the child live with the mother and she have sole parental responsibility.
I heard a lot about the criminal proceedings, including in the 17 pages that was sent at 1.09 am yesterday morning. But criminal proceedings have a different purpose to family law proceedings. Criminal proceedings are about guilt or acquittal and for most offences, on the criminal standard of proof. Here, I must be focused on the child’s best interests. I was also told that judges in the District Court, the Crown Prosecutor, a police person and various other people involved in the criminal proceedings had all formed the view that the mother is a liar and could not be trusted, and that the child was better off with the father and his family. In the father’s additional 17 pages, he attaches what appears to be transcript or similar synopsis from those proceedings, which support, in part, what he says. However, I am not bound by anything those people said. I am not conducting a criminal trial on the criminal standard, but a consideration of the child’s best interests.
The father explained why he was not prepared to cross-examine the mother or run an adversarial trial including cross-examination. He said, in essence, that he could not afford to do that. I note many people act for themselves in this Court, including in trials.
The father regretted that he should have brought in an ADVO before the mother did. He submitted that if he had done that, then the child would have remained living with him.
He also said he felt judged on his appearance, especially from Dr C, when he was, in fact, to use his words, a giant teddy bear. The father also asked for an order that he could give letters for the child to the police, and they pass the letters along. I am in no position to order the police to do anything. The father then asked for an order that he could approach the police with the letter. I will decline to make an order about something the father can do himself. There is nothing stopping the father from going to a police station and asking the police to pass a letter on to his son. Whether the police wish to do that, is an entirely a matter for them.
The father’s submissions concluded with an impassioned plea wanting to be in his son’s life. He submitted the child needs the father, that the child is in danger and that the mother is putting the child’s life at risk. Obviously, those submissions are contrary to the father entering into Consent Orders that the child live with the mother.
Finally, he asked me to ignore Dr C’s report, ignore the Final Consent Orders, grant him recognition time with the child once a year, and give him “some simple things” like the letter. It will be noted that many of the orders sought at the end of his submissions are at odds with the Minute that is before me.
Dr C’s affidavit is in evidence before me. It has not been tested by cross-examination, but that is a consequence of how the parties chose to run the final hearing. Nevertheless, Dr C’s report is just one piece of evidence that I have before me.
I have no power or authority to ignore the consent orders. As I explained to the father a number of times, I was not sitting as an appellate judge.
I will not be making an order for recognition time once a year as it was not contained in the father’s Minute of Order. More so, it would run contrary to the Final Order that has already been made. An earlier judge determined it was in the child’s best interest that the child spend no time with the father. I have however made a consent order that the ICL will consider providing the father’s letter to the child when she meets the child, if the letter is appropriate.
Disposition
The Personal Protection Orders
I accept the submissions of the ICL and the mother. The father has been convicted of an offence against the mother. Putting aside the many other allegations made by the mother and denied by the father, that offence would be enough to make the mother fearful of the father.
I have read the father’s many details in his lengthy affidavit about all of the charges he faced, his thoughts about them and the mother. I heard submissions about that and he said more about that in the 17 pages sent yesterday morning. Perhaps the best summary of the father’s experiences with the criminal justice system is at Dr C’s report at paragraph 33:
[Mr Aria] denied all allegations […] made against him. He explained that he was in gaol […] following his charges. [Mr Aria] explained that he was only convicted of one charge […], explaining that [several] other charges did not result in conviction due to ‘a lack of evidence’. This clinician’s review of the Court transcripts indicate that [Mr Aria] was charged with an offence of deliberately [harming Ms Weller]. The sentencing did acknowledge a previous charge [against] another individual and this along with allegations that were acquitted highlighted that [Mr Aria’s] ongoing risk profile for reoffending would most likely be relevant to domestic/interpersonal relationships. As such a CCO was placed on [Mr Aria]. It is noted that [Mr Aria] still denied his guilt for this assault at the time of this interview.
(Family Report of [Dr C] dated 21 March 2022, paragraph 33)
I am not persuaded by the father’s submissions that because the state court has apparently rescinded the ADVO, then I should not make the Personal Protection Order. My focus must be on the best interests of the child. ADVO proceedings have a different purpose and test, as do the raft of other criminal proceedings the father faced and was acquitted.
I consider it just and convenient (s 68B(2)) to make the Personal Protection Order sought by the mother and ICL. I do so for two main reasons. First, the unchallenged residential parent, the mother, needs the protection of the Personal Protection Order so she can parent without fear and anxiety of the father, say, turning up at her home or the child’s school. The father spoke about always having to look over his shoulder when the ADVO was in place for fear of breach. I conclude it is the mother, the unchallenged residential parent, who needs to not be looking over her shoulder for the father, so she can concentrate on parenting.
Second, the child also needs assurances that his father cannot come near him. That need is acute for the child given Dr C’s opinion at paragraphs 165 and 170:
There is a possibility that if [X’s] request for no-contact is given weight, that [X] may be able to move on from his feeling of impending danger. This is by no means guaranteed of course and should his level of anxiety and fear be maintained post this matter he would greatly benefit from ongoing therapy. As discussed above, how he responds after the Court’s determination of this matter will be largely dependent on how [Ms Weller’s] capacity to ensure the ongoing safety of [X], inclusive with her own intimate partner(s).
…
Based on the above responses to the issues to be addressed, and [X’s] clear and unambiguous threats of self-harm harm if he believes he is to be forced to see his father, this clinician cannot make any recommendation that would impose contact between [X] and [Mr Aria]. Noting that, the following recommendations are still made to address residual concerns relating to [X’s] wellbeing and ongoing care under the responsibility of [Ms Weller].
(Family Report of [Dr C] dated 21 March 2022, paragraphs 165 and 170)
The child’s views and the nature of the child’s relationship with the father, and of course I am referring to s 60CC(3)(a) and the nature of relationships in s 60CC as well, are clearly expressed in these paragraphs. In those circumstances, it is just and convenient to make the Personal Protection Order. I will make the Order until the child turns 18 years.
Travel and Passports
I accept the submissions of the ICL and mother. There is no evidence before me that the mother is a flight risk. She went to America in late 2018 and, obviously, returned. The mother has sole parental responsibility and the child has no contact with the father. Thus, any trips overseas will not impinge upon the father’s time, as was the context in, for example, Line.
It is trite to say that travel to other countries offers children rich opportunities to learn about other cultures and traditions. It is a different kind of education.
The father submitted that if the mother went overseas and did not return, the chance of the father having a relationship with the child would be lost “forever”. I conclude it more probable than not that if the child, at some point in the future, wishes to find the father, he will be able to do so.
Travel overseas, as I said, can be its own form of education for a child. Any travel undertaken by the mother and child will not impact on the child’s time with the father, as the no time order has been made. I will thus make an order allowing the child to travel outside of the Commonwealth.
Clearly, the mother will need a passport for the child to travel. I will make a passport order.
Father’s Order 2: time with order based on the child’s wishes and discretion
The father consented to an order the child have no time with him. I do not accept his submissions that he thought the Final Consent Order of March 2023 was a recommendation or framework. It is impossible to read the notations that have been in this matter, which set out the remaining discrete issues, as meaning time was still up for argument.
The issue of time has been decided. When the matter first came before me, I included a notation to the effect that the father ought read the Final Orders and understand I will not be going behind them.
The father made no submissions on Friday or in his material yesterday, which could be characterised as a Rice & Asplund (1979) FLC 90-725 submission.
Rather, the father made submissions that I should listen to the child’s wishes and make an order that the child see the father if the child wished and at the child’s discretion. There is a difference between listening to a child’s views as required by s 60CC(3)(a) (as part of a raft of many other considerations) and making a child the decision maker. The father is asking me to do the latter which is not child focused and not in the child’s best interests. The child is not the decision maker at this point in his life. Apart from being inappropriate and not child focused, to place the child in this position would have the likely effect of being harmful to the child in the circumstances described by Dr C at paragraphs 165 and 170. It could be a disastrous change for the child; s 60CC(3)(d).
Father’s Order 7: an airport watch listing for the child
I have already determined the mother be able to travel with the child outside of the Commonwealth. An airport watch list would be contrary to that order.
I repeat what I said under the travel and passport heading here. For reasons already given, I do not accept the father’s submission that if the child went overseas and did not return (of which there is no evidence in support), his chance of a relationship with the child in the future would be lost forever. My focus is not on the father’s chance, but on the best interests of the child.
My decision-making is based on the child’s best interest, not the father’s hopes and aspirations for the future. I have already concluded that the ability to travel is something the child ought be able to do. I will therefore not make the airport watch list order.
Father’s Order 8: the child’s name
Both the mother and ICL submitted that this was not a live issue in the sense that sole parental responsibility itself would not allow the mother to cause such a change. I was told that specific orders would be required permitting the mother to change the child’s name. I accept that to be so.
I am also persuaded by the submissions of the ICL and the mother that if I made such a restraint and the child decided himself to adopt a different name, then that could put the mother in breach.
I will not make the order sought by the father, as it is not a live issue for the submissions made by the ICL and mother. I will also not make the order in the event it had the unintended consequence of putting the mother in breach of the restraint if the child decided to call himself a different name.
I agree with the father though that when the child turns 18 years, the child can call himself whatever he wants and undertake legal avenues to make that occur.
For all of these Reasons, I make the orders at the start of these reasons.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 23 May 2023
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