Bayle and Dallaway

[2020] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYLE & DALLAWAY [2020] FCCA 460

Catchwords:
FAMILY LAW – PARENTING – Issue in dispute the father’s time with children aged 5 and 3 – where the father filed a trial affidavit but failed to attend the hearing – where the lawyers assigned to the father sought leave to withdraw – matter heard and determined on an undefended basis – where the father has an extensive criminal record and subjected the mother to severe family violence during their relationship – where during one mention of the matter the father lost his temper and kicked and shoved the court door while storming in and out of the courtroom – where the father has stalked, threatened and intimidated the mother since the proceedings commenced and has been charged with further family violence offences – where the children would be unsafe in the father’s unsupervised care and where supervised time would be entirely inappropriate – order made for no time and no communication – where this outcome is unfortunate because the father is Aboriginal and the mother is not but where the children’s safety must be prioritised.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Applicant: MS BAYLE

Respondent: MR DALLAWAY

File Number: NCC 952 of 2019

Judgment of: Judge Terry

Hearing date: 31 January 2020

Date of Last Submission: 31 January 2020

Delivered at: Newcastle

Delivered on: 31 January 2020

REPRESENTATION

Counsel for the Applicant: Ms Ticehurst

Solicitors for the Applicant: NLS Law

Solicitors for the Respondent: Ark Law Lawyers

ORDERS

1. The mother shall have sole parental responsibility for the children X born in 2014 and Y born in 2016 (“the children”).

2. The children shall live with the mother.

3. The father shall spend no time with and have no communication with the children.

4. The mother may apply for a passport for the children and travel internationally with the children or allow the children to travel internationally notwithstanding the consent of the father has not been obtained.

THE COURT NOTES THAT:

(A)These orders have been made in the father’s absence. If the father files an application in the future seeking parenting orders about the children he will need to address the issues of drug use, mental health and family violence which have been raised in these proceedings in any affidavit he files and if he fails to do so his application may not be permitted to proceed through the court system.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 952 of 2019

MS BAYLE

Applicant

And

MR DALLAWAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and 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 matter concerns parenting arrangements for X who was born in 2014 and who is now five, and Y who was born in 2016 and who is now almost four.

3. The mother filed this application on 29 March 2019 following the father retaining the children and refusing to return them to her. 

4. On 3 April 2019 the court ordered that the children be returned to the mother, that they live with her and that further consideration of the father’s time with the children be reserved.

5. No orders have ever been made for the father to spend time with the children. He has spent a substantial amount of time in the recent past incarcerated and his behaviour when he did attend court was deeply troubling. I recall an occasion when the father lost control and stormed out of Court, came back, kicked the door, went out again and then did not return for the rest of the mention.

6. I ordered a family report at an early stage as I often do in cases where I am unable to make an order for children to spend time with a parent because of serious allegations of family violence. Interviews for that report took place on 18 October 2019. The father did not attend the report interviews because he was incarcerated. 

7. The matter came before me on 21 November 2019 following the release of the report. The father did not appear in person that day but an agent appeared on behalf of his solicitor in Sydney and sought an adjournment of the matter.

8. Given the significant risk of harm issues raised in the matter I indicated that I was not prepared to adjourn it for mention and I listed it for trial on 31 January 2020 and made trial directions. 

9. The father’s solicitor engaged counsel and the father filed a trial affidavit on 24 January 2020. It was filed late but had the father appeared it is likely that he would have been allowed to rely on it and I would have conducted a hearing into the issue of the time the father should spend with the children and the allocation of parental responsibility.

10. It was not in dispute that the children should live with the mother.

11. However when the matter was called on earlier today Counsel and a solicitor appeared for the father but the father was not present. 

12. I stood the matter down so that I could complete another matter.  When it was called back on at midday the father was still not present and I was informed that it appeared that he was again in custody.

13. The father’s solicitor and counsel were given leave to withdraw and I then heard some submissions from the mother’s counsel.

14. I am more than satisfied that it is appropriate to hear and determine this matter on an undefended basis today. 

15. The father has numerous criminal convictions. There is evidence on which I am entitled to place weight about his violence to the mother. His behaviour during the time the proceedings have been before the Court has been deeply troubling and there is no sign of him turning his life around. He has spent more time in prison during his children’s lives than he has spent out of it.

16. If the father turns his life around in the future he can always bring another application but there is no sign of that happening at the moment and there is no benefit to anyone in these proceedings remaining on foot.

The mother’s application

1. The mother relies on her amended initiating application filed on 17 December 2019 and the affidavit she filed on the same day.  The orders she seeks are that the children live with her, that she have sole parental responsibility for them and that they spend no time with and have no communication with the father.

2. An order that the children live with the mother is entirely appropriate. I will discuss in a moment the significant family violence that occurred during the parties’ relationship but for some little while the mother been attempting to disentangle herself from that situation.

3. The family report writer was impressed by what the mother had done recently in terms of accepting support and trying to keep herself and the children safe. He was impressed by the children’s presentation and he observed the children with the mother and said as follows:

   In observations of interactions between the two subject children and the mother, it was noted that the children were immaculately dressed (each in a bow tie), and were content and comfortable when playing in the play-room, with their mother. The mother was constantly engaging with the children, and the mother was equally responsive to both children’s continual seeking of the mother’s attention. The mother facilitated the game-play of the children, providing them with various toys, and interacting in play, and talking with both children equally.

   The mother was also observed responding to the material needs of the children, and was observed offering and giving the children food or drink, and taking the children to the toilet when required. It was noted that the children were almost exclusively pre-occupied with play, and their own, verbal interactions, were somewhat less that the mother’s conversation towards them, however both children did frequently say “mummy” as they sought her attention, and also sought reassurances that she was close by. The children did however follow many instructions of the mother, such as cleaning their food mess, and placing rubbish in the bin. There were also occasions of physical interaction and affection demonstrated by the mother towards the children, and the children reacted naturally and autonomously when the mother was affectionate toward them. [1]

   [1] Family Report paragraphs 52 & 53

4. The family report writer was satisfied that the children should remain living with the mother.

5. Earlier in the proceedings the father raised concerns about the mother’s parenting capacity including her capacity to feed the children. He also raised concerns about her drug use and associates.

6. The family report writer did not consider that anything about the children’s presentation suggested they were not being appropriately fed and looked after and there is no evidence before me that the mother is currently using drugs including the pernicious drug ice.

7. I cannot find based on any evidence available to me that the children are currently at risk in the mother’s care. 

8. The family report writer commended the mother for the fact that she has been willing to accept supports, had recognised that being exposed to severe family violence and dysregulated behaviour was extremely destructive for children and was trying give them a good upbringing.

9. The mother sought an order the children spend no time and have no communication with the father which is an extreme order for the Court to make. It is particularly concerning in this case because the father is Aboriginal and the mother is not and if an order is made for no time and no communication the children may have no connection with their particular Aboriginal heritage or their Aboriginal family. There are paternal relatives but the paternal grandmother and the father’s sister do not seem to be forces for good in the matter. 

10. The mother is aware that the children are Aboriginal. They can be identified as Aboriginal at school. There are some things the mother can do to make sure they do not lose that identity but if a no time/no communication order is made the children are likely to lose connection with the father’s family as well as the father.

11. The children will also not have a meaningful relationship with their father and the first primary consideration is the benefit to the children of having a meaningful relationship with each of their parents.

12. However the second primary consideration is the need to protect the children from physical or psychological harm from being exposed to or subjected to neglect, abuse or family violence. Pursuant to s. 60CC (2A) of the Family Law Act that takes priority over the first consideration and on the basis of the evidence before me there is absolutely no doubt that the children would be unsafe in the father’s unsupervised care.

13. The father has an extensive criminal record. I have just viewed it and the family report writer accurately summarised it as follows:

    Additional information was available from subpoenaed files from NSW Police regarding the father and the mother, and it was noted that offences and convictions recorded for the father appear to be around 12-14 offences, from 2013 to March 2019, and also Children’s Court appearances prior. Such offences include shoplifting, goods in custody, break and enter, breach of bail, robbery with weapon (and imprisonment), destroy/damage property, stalk and intimidate (6months imprisonment), hinder police (3 months imprisonment) stealing (12 months imprisonment), and enter premises without lawful excuse and common assault. The father is the defendant in an AVO in place from 9/4/2018 to 19/12/2019, and also an ADVO commencing from 01/7/2019.[2]

    [2] Family Report paragraph 61

14. The father’s criminal record, containing as it does convictions for stalk intimidate, common assault and destroy and damage property, is an issue of concern by itself. He is obviously a person who can react very violently and I have observed that myself when he kicked and pushed the Court door in a fit of temper because the Court proceedings were not going his way. 

15. The mother alleged that the father committed serious acts of family violence during the relationship. By way of detailing that without spending an inordinate amount of time on it I include the following from the family report:

    The mother was asked questions as per the routine family violence assessment. Within this assessment the mother described that the relationship between herself and the father was violent (physically and physiologically), exacerbated by drug use (using ice weekly, and the mother denying any drug use of her own), and threatening, denigrating and intimidating behaviour. The mother described significant threats of harm including threats to kill her. The mother also described the physical abuse as being punched, dragged to the ground by her hair, and having her head stomped on, or being hit with a broom. The mother also described that concerns about violence towards her had been identified by 3^rd parties such as doctors, the Department of Family and Community Services, and police.[3]

    [3] Family Report paragraph 36

16. The family report writer went on to say as follows:

    The mother was informed that the father would ordinarily be expected to attend the family consultant’s appointment, and that he was expected to attend today (before it was reported that the father was incarcerated). The mother misinterpreted this statement and assumed that the father was going to attend the appointment. The mother was observed having a sudden startled response, physically tensed up and looked around towards the door, in a very fearful manner. The mother was subsequently reassured that she was safe, however the report writer notes the considerable and genuine fearful and post-traumatic response of the mother at this point in time.[4]

    [4] Family Report paragraph 40

17. In the family report writer’s mind that confirmed that not only had the mother experienced that family violence, she was genuinely fearful of the father and suffered a post-traumatic response when she thought that he might be about to walk through the door.

18. The mother has been subjected to severe family violence and is very fearful of the father. He is unable to control himself even in a Court setting and he has continued to threaten and intimidate the mother since these Court proceedings commenced earlier this year.

19. The mother alleged and I accept that:

    ·      On or about 9 June 2019 she was out walking with the children and her sister when the father walked towards them yelling about wanting to spend time with the children and followed the mother for some period continuing to make that request. The mother attempted to call the police but the father wrestled the phone from her hand.

    ·      Between 9 June 2019 and 21 June 2019 the father attended the mother’s unit uninvited and assaulted her in front of the children. The father was charged with common assault and gaining entry to the mother’s property and a provisional ADVO was made for the protection of the mother and children.

    ·     On 23 June 2019 the father attended the mother’s home uninvited with his sister and her partner.

    ·     On 1 July 2019 when the ADVO application was before the Local Court the father walked past the mother and whispered “Goodbye Ms Bayle.”

    ·     On 25 July 2019 when the matter was before this court for a mention the father said to the mother “you better get a safe house cunt” and “you’re gone slut”. The mother reported this to the police and the father was charged with breaching the ADVO and stalk/intimidate. He pleaded guilty and received a community corrections order.

    ·   On 29 October 2019 the father was convicted of assault and breach of ADVO arising out of the incidents in June 2019 and sentenced to two months imprisonment.

20. There is currently an ADVO in place for the protection of the mother and the children from the father and an ADVO in place for the protection of the mother from the father’s sister.   

21. The father’s behaviour this year has been extremely threatening, intimidating and uncontrolled and the family report writer’s observation that it is doubtful that an ADVO is going to provide sufficient protection for the mother or the children is a very well-made observation. This is certainly a case where security measures will need to be put into place to make sure that the mother remains safe. 

22. The children would be unsafe in the father’s unsupervised care and this is not a case in which the Court could consider making an order for supervised time.

23. The father is a threat to the mother.  The children have been exposed to this family violence. That is likely to have caused them distress and fear and undermines any prospect of them ever having a meaningful relationship with the father.

24. If they were ordered to spend supervised time with the father it might be confusing and upsetting for them and cause them psychological harm.

25. In addition the nature of the father’s behaviour, including his behaviour in the courtroom, is such that it is somewhat doubtful that he would adhere to the rules of a contact centre.   

26. The father is an extremely poor role model for the children. If they were exposed to this behaviour for any length of time they might copy it and end up being children that nobody in kindergarten wanted to know. 

27. Given the nature and extent of the family violence and the mother’s response when she thought the father was about to walk into the family report interviews it would be extremely distressing for the mother to be required to comply with an order even for supervised time and I am entitled to take into account the impact on the mother of making an order for the father to spend time with the children.

28. It is always concerning if the Court cannot make an order for a parent to spend time with children but their safety, both physical and psychological, has to be prioritised and they need a confident functioning parenting whose capacity to look after them is not undermined by fear and distress.  

29. The likelihood of the father turning his life around is not high at the moment. He has a lengthy history of offending which began when he was in the Children’s Court and apart from the violence there are concerns about his mental health and he has been using ice.

30. In his trial affidavit the father blanket denied that he had ever committed any acts of family violence and if someone takes that position then they are not a good candidate for a behaviour change course or anything of that nature.  The father said that he had done some courses in prison to address those sort of issues but if he blanket denies committing acts of family violence he is not going to gain anything from doing any courses. 

31. However if he does turn his life around then he can bring another application to the Court and the Court will consider that because in the end it is better for children if they can know both their parents and not just one.

32. I am satisfied that I should make an order for sole parental responsibility. The presumption is rebutted because there has been family violence. The mother could not be expected to communicate with the father about matters to do with the children. That would be frightening and upsetting for her and would not benefit the children in any way. 

33. The mother sought an order that she be permitted to obtain a passport for the children and travel internationally with them. That is an order I often like to make at this stage. There is nothing to suggest that the mother wants to relocate overseas. Australians like to travel, perhaps not at the moment with Coronavirus around but they usually like to travel.  People often like to go on cruises if they have the money to do it or maybe go on an overseas trip. I prefer to make such an order at this stage because it saves people the trouble of coming back to court at a later stage and it saves Court resources.

1. I do want to say this to the mother. She is very young and she had children very young. Her choice of the father as a partner was not a good choice and it has caused enormous distress, injury and damage to her and the children, and I am not being critical of her in that regard, that is just the reality. 

2. The mother has supports around her at the moment and I urge her to listen to them because the last thing her children need is to grow up to behave as their father has been doing. That means that she must be very careful about who she associates with and the choices she make about things like drug use. She is young but she has children and they have to be her priority now. 

3. I hope things go well for the mother in the future.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  3 March 2020