BILNEY & BRISCO

[2020] FamCA 351

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO [2020] FamCA 351

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Orders – Variation – Where there are final orders for the child to live with the father and spend time with the mother – Where there has been a material change in circumstances – Where the child now lives with the mother – Where the mother seeks final orders that the child live with her and spend no time with the father – Where it is alleged the father has physically and verbally abused the child – Where it would not be safe to enable or allow the child to remain in the care of the father – Where there is no appearance by or on behalf of the father – Orders made on an interim basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Ms J Bilney

RESPONDENT: Mr Brisco

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 8 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

IT IS ORDERED UNTIL FURTHER ORDER

1. That the reference to “the children” in orders made 9 May 2013 and 1 September 2015 shall relate only to the child J born … 2006. 

2. That the mother shall have sole parental responsibility for C born … 2005.

3. That C shall live with the mother and spend no time with the father.

4. That the father be restrained and an injunction granted restraining him from:

   (a)       Approaching or attempting to in any way communicate with C;

   (b)       From attending at any place in which C may reside;

   (c)From approaching C at School R or any other school that C may attend;

   (d)From communicating, instructing or directing the administrative and educational staff at C’s school in relation to the child’s attendance and education.

5. That the father shall be restrained and an injunction granted that requires him to ensure that Ms U shall have no contact or communicate with C either directly or indirectly.

6. Further consideration of the Initiating Application filed 18 October 2019 is adjourned to 10 am on 29 May 2020 NOTING that if the father does not attend either personally or via his legal representative the Court will consider the mother’s application for final orders to be made AND UPON NOTING the hearing will be conducted by way of telephone link. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilney & Brisco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 6474 of 2007

Ms J Bilney

Applicant

And

Mr Brisco

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms J Bilney is the applicant mother (“the mother”) and Mr Brisco is the respondent father (“the father”).  The parties have been in extensive litigation in respect of the parenting arrangements for C born in 2005 and J born in 2006, collectively (“the children”).

2. The proceedings were the subject of final order following a contested hearing. On 9 May 2013 Benjamin J made orders that provided for the children to live with the father, for him to have sole parental responsibility and for the children to spend time with the mother as set out in Order 6 namely, to take place each alternate weekend with the provision of supervision.

3. There are a raft of other orders which highlighted the difficulties between the parents relating to issues of anger management and psychological presentation.  The orders were detailed, and it appears that, in a general sense, they were able to regulate the arrangements between the parties in respect of the parenting of the children until the parties appeared before me on 1 September 2015.

4. On 1 September 2015 orders were made which varied the final orders.  In particular, in respect of paragraphs 6 (e), (i) and 10 of the final orders. The important change was that it increased significantly the time that the children would spend with the mother and resolved a contravention application. The parties considered that the changes to the orders were such that all matters could be removed from the active pending list of cases.

5. Notwithstanding that it is likely that the relationship between the parties remained conflicted and that there were attendant difficulties, both in terms of the interaction between the parties and each of the children, the parties were able to live tolerably well in terms of the arrangements in respect of the children.

6. It is likely that the varied orders took into account the personal circumstances of the parties and in particular to acknowledge that, as time has passed, so have the children’s needs.

7. All of that was the precursor to an Initiating Application filed by the mother on 18 October 2019.  The final and interim orders sought are in similar terms.  The orders seek that C now live with the mother, that the father is not to have any contact with the child, either directly or indirectly, and that the father is to have no contact with School R in relation to the child’s attendance.  Similarly, the father’s fiancé Ms U is also to be restrained from having contact with C.

8. The application was filed with an affidavit and a Notice of Risk.  The Notice of Risk is an important document and sets out the allegations that relate to an assertion by the mother that the father has perpetrated child abuse in respect of C.  The alleged abuse is that on 11 September 2019, the father kicked C’s door, hit him with the door, grabbed him around the throat, slammed him into a wall and then punched a hole in the child’s bedroom wall.  C was also verbally abused.

9. The allegations as set out in the Notice of Risk broadly are a summary of the more extensive narrative that appears in the affidavit.  That document refers to an assertion by the mother that as and from 12 September 2019, being the day after the alleged assault and abuse of C by the father, C has lived in her fulltime care. That change in circumstance is an important consideration.

10. The position in respect of orders of this Court, in particular final orders relating to children, is that the proceedings should not be enlivened unnecessarily.  It is important for children to have an understanding that their circumstances are stable.  It could be reasonably said that this case may be a good example of the damaging effect that ongoing and relentless litigation can have on children.  The first foray into litigation started in 2007.  The majority of the lives of the two children have been taken up with the litigation as between the parties. 

11. It is true that of more recent years matters have not been as conflicted as they have been, but the position is that the Court should always be cautious before an application initiating proceedings is received and proceeded upon.  I am satisfied that in circumstances where C now resides with the mother, that represents a material change in the circumstances of the child and the parties, and in that case I have little difficulty in accepting that the threshold test is satisfied.

12. The next inquiry is as to whether the final orders made, both in terms of those orders made by Benjamin J in 2013 and the more recent amendment to those orders made should be altered. I propose to refer to the mother’s affidavit filed with the Initiating Application, and the Child Inclusive Conference Memorandum that was prepared as a result of an order made by Registrar Paxton pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”).

13. It is to be noted that the mother caused the application to be personally served on the father at his address at M Street, Suburb P on 4 November 2019 at 12.37 pm.  It is obvious that the mother determined that she would serve her own process.  It might be considered that that was an unwise approach by the mother in circumstances where she puts herself in close proximity to the father.  The parties have been in constant conflict over a number of years and the matters raised by the mother, both historically but also in terms of the affidavit in support of the Initiating Application, relate to serious physical aggression and violence.

14. In any event, the Affidavit of Service refers to the mother attending the father’s property with the police to serve the documents, that the father did not take the documents and they were left at the door. I am satisfied from the Affidavit of Service that the father is aware of the Initiating Application, the Notice of Risk and the affidavit in support. It is also demonstrable that the father has not appeared on any occasion before the Registrar or upon the s 11F Child Inclusive Conference.

15. Efforts have been made today to contact the father.  His phone number is part of the information on the Court file and all reasonable attempts to call the father, both in the period leading up to this hearing but also shortly prior to the commencement of the hearing, is such that the Court considers the father has been given an opportunity to be heard.  I do not consider that this is a matter where the application should be the subject of further adjournment.  I am satisfied that the father is aware of the application and that he has had the opportunity to engage in the process and he has chosen not to do so.

16. That is not intended as a criticism.  The father is not obliged to do anything.  It may be that the father’s position is that he does not wish to engage in the matter, that he accepts without challenge the matters raised by the mother and in particular that C now resides with the mother, and given that he will be 15 years of age on … 2020, it may be that the father chooses to take no further interest in the matter.

17. I return then to the content of the mother’s affidavit of 18 October 2019.  The allegations by the mother are as a result of information received from C upon him coming into her fulltime care.  Whilst hearsay evidence, in the circumstances of parenting proceedings and in particular in respect of any interim or interlocutory proceeding, the Court is able to take into account hearsay evidence and give it weight as may be considered appropriate. 

18. The broad allegation is that the father assaulted C on 11 September 2019 in an intoxicated state.  C went to his bedroom after verbal abuse had been administered by the father.  He locked the door in order to keep the father out, in circumstances where he was fearful for his safety, and the assault then occurred when the father kicked in the child’s bedroom door and it came in contact with C.

19. The altercation escalated and the father is alleged to have grabbed C around the throat, pushed him into a wall, verbally abused him and then punched a hole in the wall.  It is worse than that, in the sense that the father’s fiancé, Ms U was involved in the abuse of the child and the child relates the exchange from the father, namely that the father hates C, he hopes he fucking dies, burns in hell, and that C is a fucking ungrateful little cunt and that he wishes he never had him.

20. The mother picked C up with his sibling J from school the next day and upon C informing the mother of what had happened the night before, the mother determined that C would remain with her.  That circumstance appears not to have been the subject of challenge by the father.

21. The difficulty continues in that the father has allegedly offered C’s friends a sum of money to bash him.  That allegation has been the subject of consideration by the school principal, and whilst the father has apparently indicated that he will not continue with that offer for harm to be occasioned to his son, C believes, from what he has been told, that the offer is still on the table.

22. The focus now is upon the Child Inclusive Conference Memorandum.  The importance of this document is not simply because it provides a recitation of the history of this matter; that is well understood.  The historical allegations made by each of the parties against the other is understood, and that there is a history of family violence is also, unfortunately, a prevailing and ongoing factor in the background of the conflict between the parties.

23. There are also allegations made by the mother that the father has difficulty in controlling his alcohol intake.  Again, the advantage of the memorandum is not so much to hear yet again the history as alleged by the mother, but rather, because the document provides an opportunity for C to interact with the family consultant and to provide his assessment and understanding of what is happening.  At the time of interview C was 14 years of age.  He was in Year 10 at School R.  He indicated that he enjoyed the school, and whilst he had difficulties with his sister J, his half-sibling T and step-sibling X, he does not wish to leave school given his friendship group.

24. He says that he was aware of the father’s attempts to elicit his friends and his other siblings to bash him up for a fee. C re-confirmed the matters raised by the mother, gave better detail in terms of the type of whiskey that the father had been consuming and provided context and particularity in respect of the more mundane aspects of what had happened on 11 September 2019.  In the circumstances of this case, I consider that I should give weight to C’s direct presentation to the family consultant and the manner in which he sets out the context and background to the alleged assault.

25. Importantly, there is no difficulty in the Court accepting that C now lives with his mother, that he wants to remain with her and that he has a strong view that he does not wish to return to the care of his father, nor at this stage to have any contact with him.  He is also keen that the father have nothing to do with his involvement at School R where C attends and wishes to remain, presumably, to the end of his secondary school education.

26. I am not able to deal with this matter on a final basis.  It would be premature to do so.  It seems to me that I should be alive to the possibility that the father may review his position, may give some consideration to whether he has acted appropriately or, indeed, whether he might disagree with some of the matters raised by the mother, and in particular his son.

27. Accordingly, what I propose to do is to put in place orders that are of an interim nature and in doing so that will then enable C’s position to be established for a period of about five weeks.  If upon the adjourned hearing the father indicates that he either does not wish to engage or takes no active steps to do so, then the Court will give consideration to whether the orders that the mother seeks by way of final relief should be made.

28. For the moment however, the Court is faced with orders to be made on an interim basis, and in that respect the Court considers the case of Marvel & Marvel [2010] FamCAFC 101, a 2010 decision of the Full Court, to assist in how the Court is to consider evidence or contested evidence.

29. The summary is that the Court should, for a very good reason, often adopt a conservative approach or one which is likely to avoid harm to a child.  That does not mean that there are not some threads of the evidence which, notwithstanding that they are uncontested, are not able to assist in the decision making process. Having said that, the Court should, in an appropriate case, not be reticent to make orders in particular that protect a child.

30. In making any interim parenting order, I am obliged to have consideration to the principles in respect of s 60B of the Act. I have regard to s 60CA of the Act, namely that the best interests of the child should be the paramount consideration, and that test is assisted by reference to the primary and the additional considerations in s 60CC of the Act. I have given careful consideration to the provisions of s 60CC. There is obviously a need for a child to have a meaningful relationship with his parents, but the countervailing position is that it should only occur if it is safe to do so. In the circumstances of this case I am satisfied that it would not be safe to enable or to allow C to remain in the care of his father.

31. The weight that the Court places on that consideration is assisted and corroborated by C presenting appropriately to the family consultant, with the family consultant having some confidence in the history, as provided by the child, of the violent interaction between the father and the child and the recommendations of the family consultant as contained under the heading of future directions in the following terms:

    22.C has made serious allegations of abuse by the father, such that a mandated notification was raised and further investigation may ensue as a result.

    23.It is unlikely that C would change his views, and if his account is accepted he would be at significant psychological and physical risk if he were to spend time with his father. [1] 

    [1] Child Inclusive Conference Memorandum to the Court dated 5 March 2020.

32. I should also at this stage, digress to acknowledge that there has been an investigation by the Department for Child Protection. On 14 January 2020 a report was provided to Registrar Paxton indicating that the Department does not choose to intervene in the proceedings, noting however, that there have been 13 intakes between 2010 and 2015 for C with concerns in relation to chronic head lice, poor hygiene, threats to kill by each of the parties, the father’s threat to slit the mother’s throat, his stalking conduct towards the mother, but also to be fair, the children witnessing family violence perpetrated by the mother, physical discipline by the maternal grandfather, and the children having bruises after having spent time with the father.

33. A further notification in October 2019 is clearly based upon the allegations made by C of his alleged assault at the hands of the father on 11 September 2019.  The circumstances in this family are dire and it is difficult to understand how it is that the Department for Child Protection would not consider the serious allegations, both historical and current, are not matters which would ordinarily invite intervention.

34. A decision has to be made by the Court as to what is to happen and whilst this may be one of those cases, perhaps indeed a rare case, where the Court is simply not able to make a decision on the basis that the Court cannot be satisfied that this child’s best interests are being served either in the father’s care or, indeed, in the mother’s care, I am however persuaded by the recommendations as to future directions as posited by the family consultant and that C has now been residing with the mother since 12 September 2019 without there having been any further event, incident, notification or application. 

35. It seems to me, therefore, for those reasons that I should direct my attention to that which C feels is the safest environment for him to reside, and that is clearly with his mother. 

36. I make the following orders as appear at the commencement of these reasons. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 April 2020.

Associate: 

Date:  12 May 2020