Bancroft and Lindsay

[2016] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANCROFT & LINDSAY [2016] FCCA 1236

Catchwords:
FAMILY LAW – Undefended parenting hearing – family violence – father commenced proceeding seeking Commonwealth Information Order – father failed to disclose significant family violence and number of Intervention Orders – after mother files response disclosing the violence including allegations after the commencement of proceedings – after mother files response disclosing the violence the father files a notice of discontinuance – in child’s best interest to make orders for mother to have sole parental responsibility and for the father to spend no time with the child – orders made allowing the matter to provide orders and reasons to various organisations to protect mother and child from further harassment.

Legislation:

Family Law Act 1975, s.67Z

Australian Passports Act 2005 (Cth), s.11

Applicant: MR BANCROFT

Respondent: MS LINDSAY

File Number: DGC 2491 of 2015

Judgment of: Judge Harland

Hearing date: 13 May 2016

Date of Last Submission: 13 May 2016

Delivered at: Dandenong

Delivered on: 13 May 2016

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Ms La Greca

Solicitors for the Respondent: Pentana Stanton Lawyers

ORDERS

1. The mother have sole parental responsibility for X born (omitted) 2011 (“the child”).

2. The child live with the mother.

3. The father spend no time with the child.

4. The father be restrained from contacting the mother or the child by any means.

5. The mother be permitted to obtain the child’s passport pursuant to section 11 of the Australian Passports Act2005 without the father’s consent.

6. The mother be authorised to provide a copy of these orders and these reasons to:-

   (a)any school that the child attends;

   (b)Victoria police;

   (c)the Department of Health and Human Services;

   (d)Centrelink; and

   (e)the Australian Child Support Agency.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2491 of 2015

MR BANCROFT

Applicant

And

MS LINDSAY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case that is before me today for an undefended hearing.  The proceedings commenced on 11 August 2015 when the applicant father filed an initiating application which was seeking interim and final orders to spend time with his daughter, X born on (omitted) 2011 (“X”), now five years old.  The content of the father’s application is significant.  He sought an information order to locate the mother and X’s whereabouts and what was significant in his initiating application and notice of risk is what it does not say about the circumstances. 

3. In the Applicant’s notice of risk, the only issues that he identifies is allegations that the mother was subjecting X to psychological harm by denying her a relationship with her father and, therefore, denying her a sense of her identity.  What the notice of risk does not reveal is anything about family violence and by that I mean his violence.  There is nothing in the notice of risk and there is nothing in the affidavit.  I suspect that the father did not disclose it to his solicitor and he was in receipt of legal aid at the time.  The reason why it is significant is because after the mother was located, she filed material annexing to her affidavit several intervention orders and the circumstances in which the intervention orders were granted.  The first intervention order was in 2011 and there have been further intervention orders since then. 

4. The mother says that she has been subjected to significant family violence by the father, both during their relationship which was brief and since their relationship ended.  The parties never lived together.  The mother’s case is essentially that the father has been more concerned about seeking to re-engage with her than to see X.  The first intervention order that was taken out by police on her behalf was 11 May 2011.  The mother annexes a statement by a family friend who details in her statement that the father had made threats to the mother and threats to kill her, threats about insisting on knowing where the mother and child were living. These threats were happening while X was in the room asleep when she was a baby.

5. Both the mother and X were listed as protected persons on that intervention order.  The mother sought a further intervention order the following year on 11 September 2012 after she says the father jumped in front of her car to stop her from driving away from a visit when she had X in the car.  She says that he was threatening her and also tried to break the driver’s side window by punching it.  As a result, she was granted another intervention order.  That would have been a frightening experience for both the mother and X being in the car.  The fact that she was very young does not matter.  Those sorts of things impact on children, whether they are little or they are older and it would have been a very frightening experience for both of them.

6. In the following year the mother took out an intervention order against the father’s then partner.  The mother says his partner was going past X’s child care centre, taking photos of her and asking the neighbour for information.  Again, the mother was granted an intervention order that was uncontested, X was named in the application as a protected person, the mother, again took out an interim intervention order on 9 February 2016 and the timing here is significant.  The matter was first in court on 26 October 2015.  On that occasion Judge Jones made a Commonwealth Information Order based on the limited information in the initiating application, this which I have indicated earlier omitted significant information. 

7. The mother annexes a Facebook post of the father which, whilst it does not refer to her by name, it is dated 26 October 2015, so the same day that it was in Court where he says, “You can run, but you can’t forever.  See you soon,” and I assume he means “hide forever” and where I think his then partner says, “Good luck,” and he replies, “I don’t need luck. She does. LOL.”  Given the timing of those posts I am satisfied that on the balance of probabilities that the father was referring to the mother. Given the context of his history with her, that is intimidating and threatening.

8. The respondent mother filed a response and affidavit on 11 March 2016 and the Department of Health and Human Services (“DHHS”) provided a report pursuant to section 67Z of the Family Law Act 1975 (Cth) in response to the notice of risk which outlines that DHHS noted concerns that were raised in the father’s notice of risk which was the one that they had at the time about X being exposed to psychological harm by the mother and further notes that the author of the report spoke to X’s school where concerns were raised about her behaviours at school which was being managed by a behaviour management plan and school psychologist and also met with both parents at their respective homes and noted their concerns.

9. The report writer noted that there is a significant and concerning history with Child Protection Services with the father’s extended family where there has been sexual abuse allegations against the father’s brother and allegations of neglect also concerns with the paternal grandmother not acting protectively and not following safety plans.  The report writer also noted the mother’s concerns about the father’s family violence and the multiple intervention orders that had been granted and the report writer noted that, generally, children have the right to know and have meaningful relationships with both their parents but this is subject to the children’s right to safe environment and that is what is reflected in the Family Law Act.

10. The mother deposes in her affidavit that in about November 2015, she was driving past and saw the applicant father who was in his car. The father tailgated her. Again, she had X in the car with her as well as her son.  She says she was fearful that the father would crash into them and injure herself and her child. The mother says that the father engaged in similar behaviour on 24 December 2015 and 11 January 2016.  As a result of those incidents, she applied for an intervention order on 9 February 2016. Both the mother and child were listed on that intervention order.

11. The interim intervention order became final on 1 March 2016 and was uncontested by the father.  The timing of those incidents are significant because it is during the period that the matter was in Court.  The other things that the mother says in her affidavit is the father has never been a consistent presence in X’s life, that he has on a few occasions expressed the desire to see X but she feels, really, that has been attempts by him to reconcile with her and to continue to interact with her and that when she has indicated that she did not want to resume a relationship with him, he would become aggressive. 

12. The mother says the father also has a history of substance abuse and other criminal activities, including driving unlicensed. 

13. The mother has extensive family support including support from her parents, aunts and also her partner and the mother’s father is here in Court today supporting her, so X is fortunate in that she has plenty of loving people in her life who are able to protect her.  The mother says X is now in her first year of primary school and that she has settled down and is progressing well.  X had difficulties adjusting to the transition of going to pre-school and school and had difficulties separating from her mother. Her behaviour may well be as a result of the trauma that she has experienced being exposed to the family violence.

14. X continues to have the support of psychologists through the school and is now settling in and doing well. 

15. It is really significant in this case is that just a few days after the matter was in Court on the last occasion, the father filed a notice of discontinuance.

16. The documents that are now before the Court and the father’s conduct, to me has all the hallmarks of someone continuing to engage in controlling and coercive violence.  Violence does not need to be physical and in fact, this kind of controlling, aggressive, stalking behaviour can be much more damaging.  It is easier for people to understand physical violence. Bruises are visible. But for the person who is subjected to controlling and coercive violence, it can be very hard to make other people understand what they have been going through and often people like this can seem genuine, they are faced with the perpetrator of the violence telling people “Look, I’m the father of this child.  She’s stopping me from seeing my child.  This child needs to see me.”

17. It is clear from the father’s behaviour, it is not about X for him; it is about wanting to control the mother.  If the father was genuine about wanting to re-connect with his daughter, these proceedings would be continuing.  The omissions in the father’s initiating material speaks volumes so too does the fact that when faced with evidence about this previous conduct – not just one intervention order but on the history, the mother has had to get an intervention order almost every year since being involved with him. He does not respond to any of that material.

18. The one year when the mother has not had to get an intervention order is 2014 which seems to coincide with the period where he did not know where she was because he then started court proceedings and sought an Information Order.

19. There is a very concerning pattern that wherever the father has known where she is, there has been issues and intervention orders.  It is unusual to see intervention order after intervention order having to be taken out and including against the pattern.  Often one hopes that an intervention order will act as a deterrent, with someone not behaving that way again; he has this history where he doesn’t contest these things, he doesn’t turn up, he doesn’t challenge them and that’s what he’s done in this Court as well.

20. The father is content to be the aggressor until challenged and then he retreats.  The mother has been granted an exemption from a child support agency in seeking child support from him.  This closes off one avenue for the father to seek to control and harass the mother. I am satisfied that in this case that the father has abused the process of the Court to seek to further exert control on the mother.

21. I am satisfied that the mother is well-able to look after X’s physical, emotional and psychological well-being.  The mother has good supports in place. DHHS noted that the mother was appropriately concerned about what was going on with X’s schooling and X is fortunate to be able to have the mother and maternal extended family looking after her.  The mother, through her solicitor, has made an oral application for an order that she should be able to obtain a passport without the father’s consent.  The mother’s family is from (country omitted) and she still has family there. It is important for X to be able to go to (country omitted) to see where her family comes from and to engage with family members there.

22. Whilst I note that there are amendments to the Australian Passports Act 2005 (Cth) to bring its definition of parental responsibility into line with the Family Law Act, I propose to make a specific order about that issue in case – for abundance of caution – because the last thing that the mother needs is to have to come back to court in some future date. 

23. I am satisfied; that the father has not shown that he has any capacity to be a safe person in X’s life and has not shown that he has any understanding of the attitudes and responsibility towards parenthood.  X does not have a meaningful relationship with him.  X has not spent any significant time with him in her short life at all, she has not seen him apart from in scary episodes of him stalking the mother for some years now.

24. The father is not a safe person for X.  This is a situation where the family violence is such and given the father has not saw fit to challenge any of this, it is not in X’s best interests to have a relationship with the father. 

25. The reason why I find it necessary to give written reasons in this case is because it is important and in X’s best interests that the mother be able to provide these reasons to show authorities, as well as the organisations I have listed in these orders, in the event the father seeks to make contact in this way again.

26. I am satisfied that the mother and X have been subjected to serious family violence and that this not would be in X’s best interests for there to be an order for shared parental responsibility.  The mother should have sole parental responsibility.

27. The mother should be able to provide these orders and reasons to DHHS, Centrelink and the Child Support Agency so that they are aware of these issues.

28. It is a matter where, given the seriousness of the violence that the mother been exposed to, any assistance that can be provided in giving the information to the appropriate authorities who she may have contact with, may assist her because one of the other long-term impacts for people in the mother’s situation is the difficulty in talking about it and reliving it and that might assist in this regard. 

29. Giving the mother assistance in dealing with those difficult issues and how that might impact upon her emotional welfare and psychological welfare, also benefits X because X is reliant on her mother. Young children are very perceptive and know when their parents are upset and afraid.  X has experienced that because of what the father has deliberately exposed her to and, it seems, somewhat consistently over the years. 

30. For these reasons, I am going to make the orders that I have pronounced.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  20 May 2016