Bretts and Bretts

[2007] FamCA 333

FAMILY COURT OF AUSTRALIA

BRETTS & BRETTS [2007] FamCA 333

FAMILY LAW – CHILDREN – 3 young children – Extensive history domestic violence – Breaches - Father spending extended periods in prison – Children very limited contact – Fearful – Mother extremely fearful – No order for contact between children and father
FAMILY LAW - ADJOURNMENT – No appearance – Adjournment refused
FAMILY LAW - CONTRAVENTION – Struck out

APPLICANT: MRS BRETTS

RESPONDENT: MR BRETTS

FILE NUMBER: BRF 3398 of 2005

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Coffs Harbour

JUDGMENT OF: Jordan J

HEARING DATE: 19 & 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: G A Guthrie,

THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Theobald

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Burridge Harris & Flynn

Orders

1. The Children, an elder son, born in October 1996, a daughter, born in February 2001, and a younger son, born in December 2003, shall live with the Mother.

1. The Mother shall have the day to day and long term sole parental responsibility for the said Children.

1. Until further Order, the said Children shall spend no time with, or communicate with, the Father.

1. The Father’s Contravention Applications are dismissed.

1. There will be no Order for costs.

1. All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

1. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

BY WAY OF DIRECTION

1. All documents produced pursuant to subpoena shall be returned to the parties providing those documents upon the expiration of the appeal period and, in the meantime, those documents shall be secured and no party shall have liberty to inspect those documents without leave of the Court.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Bretts & Bretts.

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: BRF 3398 of 2005

MRS BRETTS

Applicant

And

MR BRETTS

Respondent

REASONS FOR JUDGMENT

ex tempore

1. In this matter, I have read the material filed by the mother, the voluminous material filed by the father and the material filed by the Independent Children's Lawyer.  Included in the father's application are some 108 contravention applications, many of which, on their face, appear to be of dubious legal value.  I am asked to look at those applications in the absence of the father's appearance.  On that issue, I should note that the matter was the subject of a directions hearing in December of last year and that the father attended on that occasion and was apprised of the hearing of this matter listed to commence yesterday, 19 February 2007.

2. As I say, the father has filed extensive material.  On Monday of last week, the matter was mentioned along with all other trial matters for the purposes of managing the list.  The father sought leave to attend by telephone on that occasion, and that was granted and he attended by mobile phone.  The link with the father on that occasion was very poor and, as a consequence, I stood the matter over to Wednesday of last week, when the father was on a land line. 

   
   

   The father made an application for an adjournment of the trial to commence yesterday.  I heard argument in relation to that matter and refused The father's application for an adjournment, although, having refused his application, I added that I had not read all the material and I would give him leave to renew his application for an adjournment at 10 o'clock yesterday.

3. The father did not attend at 10 o'clock yesterday and sent a facsimile transmission to the Court, which I will admit into evidence and mark as Exhibit 1, indicating that he had car trouble. 

   EXHIBIT #1  FAX FROM THE FATHER 

4. The father was contacted by the Court by telephone yesterday and he sought an adjournment on the grounds of his inability to travel.  Mr Davies of counsel, who appears for the mother, and Mr Theobald, counsel for the Independent Children's Lawyer, each opposed the adjournment application and I heard argument in relation to that matter.  Effectively, I acceded to the father’s application not to have the matter proceed yesterday and I stood the matter over to today to enable the father to either have his car properly repaired, or, in the alternative, make arrangements for travel from Sydney to Coffs Harbour, a journey of some eight or nine hours by road or by bus or one hour by plane. 

5. The father advised the Court that he had $400 available to him.  As a consequence of a combination of those factors, but particularly having regard to the very protracted history in this matter, the fact that it has been set down for a considerable period of time, and having regard to the legitimate argument advanced on behalf of the mother and the children that this matter needed to be dealt with, I gave the father another 24 hours and stood the matter over to today.  The father has failed to appear, he has failed to contact the Court by any other means and, in the circumstances, I take the view that he has chosen not to comply with the directions of the Court in relation to his attendance and the conduct of his proceedings. 

6. In the circumstances, firstly, I dismiss his applications for contravention in the absence of prosecution of those matters against the mother.

   RECORDED  :  NOT TRANSCRIBED

7. I now turn to the substantive application before the Court.  This is a very disturbing matter involving the welfare of three children, an elder son, a daughter and a younger son.  The elder son is 10 having, been born in October 1996, the daughter is six, having been born in February 2001, and the younger son is three, having been born in December 2003.

8. Each of the parties makes application for orders that the children reside with them and have little or no contact with the other parent.  The children have been in the mother's primary care since November of 2003 and, initially, they enjoyed contact with their father.

9. As I have said earlier, the material in this case is vast.  What it discloses is that, regrettably, the conflict between the parties has continued, if not vastly escalated, since separation and, regrettably, the children have been exposed to that development.

10. The matter has been before the Court on numerous occasions, on many occasions on the mother's application to have the father's contact with the children reduced or monitored, culminating in orders made in November of 2005 to the effect that all orders for contact be discharged and that the father not have any contact until the matter was heard by this Court.

11. The mother has secured from the Court a number of apprehended violence orders, the father has breached many of those apprehended domestic violence orders, and he has spent lengthy periods in prison as a consequence. 

12. I interrupt the judgment to say that I have received a copy of a fax which I should now read.  Admitted into evidence and marked Exhibit 2.

    EXHIBIT #2  COPY OF FAX  

13. I admit into evidence and mark Exhibit 2 a fax received in the L Court.  Curiously, it was sent at 9.34 and I can only assume that it remained without attention at the time, as I had a call made to L Court shortly before 10.

14. In any event, in that facsimile transmission the father asks the Court to re-look at adjourning all matters, saying that there was a further ground that he seeks the adjournment on, which he was unable to divulge to the Family Court prior to this day.  He says that he is trying to rebuild his life with a new partner, that he is now in a de facto relationship which he believes is not any of his ex-wife's business, and that his partner is currently in a safe house as her ex-partner has made death threats against her and her three months old daughter, her 10 year old daughter and her 15 year old daughter.  He says that, at this time, he is not prepared to risk all their safety by leaving Sydney.  He said that he is concerned about his new partner's welfare and that his new partner and her three children need him to stay in Sydney until she can be relocated to safe premises. 

15. The father said he was not at liberty to divulge that information yesterday, as he needed to consult his partner to be able to tell the Court the real facts and that is why he is not able to attend the Family Court at this time.

16. I take into account what the father has had to say in relation to that letter.  I note that, firstly, he acknowledges having deliberately chosen not to inform the Court about these matters yesterday.  I note that his new de facto partner is in a safe house and I note that, by his letter, he has taken the view that his priority is to remain with his new partner in lieu of attending this Court to proceed with his application in relation to his own three children.

17. The father's own letter strikes at his bona fides, in that he acknowledges this represents a matter he could have disclosed yesterday.  It is difficult to avoid the conclusion that the whole “broken down car” excuse of yesterday was a deliberate furphy perpetrated upon the Court.  It is difficult to escape the conclusion that, again by his own words, he is choosing to put the welfare of his new partner and her three children as a higher priority than these proceedings.

18. Whilst I take account of the father's asserted difficulties, having regard to the interests of the mother and, most importantly, the interests of these children, I propose to not grant this informal approach by the father arising by way of facsimile transmission and proceed with my judgment.

19. I believe I was touching upon some of the history of the matter, which discloses on the father's own admission that he has breached, on numerous occasions, the domestic violence orders.  He has been imprisoned on multiple occasions as a result of those breaches, including quite lengthy periods of imprisonment consistent with persistent convictions for breach.

20. That admitted evidence of convictions is prima facie evidence of the fact that the father has breached these orders without justification or excuse at law.  The mother's case is certainly to the effect that he has continued to stalk her, seek her out, harass her and cause her problems.  The criminal convictions corroborate her version and the father is not here to prosecute any case to the contrary, albeit that that would be a difficult task, in any event, in the face of criminal convictions.

21. One of the many consequences of that history and the father's convictions and incarceration and the orders of this Court, is that the thee children have not had any contact with their father since November of 2005.  The mother contends that it is not in their interests to have any contact with the father in the future.  The Independent Children's Lawyer supports that notion.

22. This is a regrettable state of affairs. The Family Law Act is clear in its objects and principles, which are designed to ensure that children have a meaningful relationship with each of their parents and have the opportunity to spend significant time with each of their parents. The children were enjoying that opportunity in the initial periods after separation. On the material before me, it would appear that the father has undermined that ideal by his own conduct, again evidenced by his numerous convictions for breaches of domestic violence orders.

23. The mother says that the children have been damaged by their exposure to the father's conduct and that they are afraid of the prospect of coming into contact with their father in the future. 

24. The obligations of this Court in relation to supporting relations between children and both parents is subject to the overriding considerations relating to the welfare of children and subject to the obligations of this Court to properly protect the children against the prospect of physical or emotional harm.

25. In this matter, in addition to the evidence of the mother, I have the benefit of a report prepared by Dr W, a consultant child psychiatrist, who interviewed the parties and the children.  Dr W was of the view that there was no evidence of psychiatric disorder in relation to the parties in a formal diagnostic sense, but he goes on to say at page 23:

    One reading of the above could lead to the view that [the father] does not have any significant mental health problems now and that his complaint should be taken at face value.  However, it is my view that it is possible that [the father] does have quite significant ongoing psychiatric difficulties which he is largely able to conceal from medical examiners.  The type of condition that I have in mind is a form of paranoid personality disorder or less likely a delusional disorder.  Paranoid personality disorder is described as a pervasive distrust and suspiciousness of others, such that their motives are interpreted as malevolent.  This includes unexplained suspiciousness, a preoccupation with the untrustworthiness of others, persistently bearing grudges, reading hidden meanings into things or a reluctance to confide in others, recurrent suspicions about the fidelity of one's partner and perceived attacks on one's character.

    Not all of these are necessary for the diagnosis.  Delusional disorder is a more severe condition associated with one or more non-bizarre delusions, in this case the possibility of a jealous or persecutory type.  It is also possible that he has more of a paranoid personality dysfunction associated with an obsessive preoccupation with his wife, which is insufficient to meet the criteria for paranoid personality disorder.

26. The mother asserts that the father is obsessive.  The father's vast affidavit of evidence-in-chief filed on 5 June 2006, together with multiple other affidavits filed on that date, on their face, would appear to provide substantial weight to the mother's proposition.  The documents do appear to be the writings of a man who would fall into the category of those described by Dr W, in particular, those extracts relating to a perceived, pervasive distrust and suspiciousness of others and a preoccupation with the untrustworthiness of others, bearing grudges, looking for hidden meanings, recurrent suspicions about the fidelity of one's partner and perceived attacks on his character.  The nature, content and repetitiveness of what is set out by the father in his affidavits would add substance to Dr W's propositions.

27. What emerges from that material and other material, but in the main from the father's own affidavit and correspondence sent to the solicitors, is that his focus throughout that material is about retribution.  He presents as being extremely angry and determined to expose the mother and her supporters to all and sundry, but most worryingly, to expose her failings to the children.  Indeed, in recent correspondence to the solicitors, he affirms in the most vigorous way possible that it is now his life's ambition to spend the remainder of his life telling everyone about the mother and the children's grandmother and exposing their lies and providing his children with what is necessarily his version of the truth.  In his own words, he will regard having achieved success in that endeavour, if the children end up hating their mother and hating anyone who has ever had anything to do with the mother. 

28. As part of his objective, he would like the children to never see their mother again until they are 18.  These assertions are made, notwithstanding that, whatever be the mother's failings, she has been the children's primary care-giver throughout their lives and their only means of emotional and physical support, certainly since November of 2005, and obviously for an extended period prior to that. 

29. The younger son, for example, has had very little exposure to his father and would have little knowledge of him.  At the present time, the mother is the centre of the younger son’s world.  A concept that, by way of punishment of the mother, the younger son should be removed from her and never allowed to see her again for the next 15 years, discloses a gross lack of insight and sensitivity into the needs and welfare of young children.

30. The Independent Children's Lawyer submits that, regrettably, on the facts of this case, the evidence before it and, in particular, the evidence of the father himself, the Court must conclude that the prospect of contact between these children and their father would be to expose the children to a high risk of physical and/or emotional harm.

31. It is observed by Dr W that the children who have had exposure to the father appear to have taken harm from it, and the less exposure they have had, the less harm they have experienced. 

32. The elder son appears to have been particularly damaged by the events since separation and the elder son needs stability and security and to be relieved of the burden of dealing with the ongoing conflict between his parents, the prospect of which appears to presently overwhelm him.

33. Dr W said in his report that:

    If the Court forms the view that there is some risk to the children, then it is not my view that it would be safe to enable even professionally supervised contact, as presumably the Court would also have found that the father has been extraordinarily tenacious, persistent and intransigent in  his thinking, such that the time around and including the contact could be used as an opportunity to gain access and to cause harm to the children, if not the mother.

    Again, the evidence before this Court adds great substance to that conclusion by Dr W.

34. Having regard to the submissions of counsel for the mother, the recommendations of Dr W and the Independent Children's Lawyer, I have regrettably concluded that this is one of those exceptional cases where the Court is unable to support the notion of the children having contact with their father.  On the evidence before me, I must conclude that ongoing contact would almost inevitably expose these children to at least serious emotional harm in the form of the vendetta to be pursued by the father, as set out in his own recent correspondence to the solicitors for the mother.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

35. There is no doubt that there is a great deal of merit in the applications for costs.  The parties do not have any money.  The father has been imprisoned for lengthy periods, so that there is no basis upon which one could have any expectation that, in the shorter or longer term, he would have the capacity to pay an order for costs. 

36. The father by these orders has been denied the opportunity to have a relationship with his children.  I take account of the fact that he is likely to be very disappointed with that outcome.  I suspect an order for costs is only likely to further inflame the situation with, as I say, no real prospect of such an order bearing any fruit, other than to inflame the father.  In the circumstances, I do not propose to make any order for costs.

    RECORDED  :  NOT TRANSCRIBED

37. Yes.  I will further direct that all documents produced pursuant to subpoena be returned to the parties providing those documents upon the expiration of the appeal period and that, in the meantime, those documents be secured and that no party have liberty to inspect those documents without leave of the Court.

    RECORDED  :  NOT TRANSCRIBED

    ADJOURNED  

RESUMED  

1. Yes, I just wish to add by way of addendum to my judgment, in particular, in relation to procedural fairness, I indicated during the course of that judgment that, having ascertained that the father did not appear to be in the precincts of the Court shortly before 10 o'clock, I made a direction that Court staff contact the L Registry to ascertain whether the father had, as he has done on previous occasions, sent a facsimile transmission to the Court advising of any ongoing difficulties.  I was advised, as I earlier recorded, that L staff had indicated that, as at 10 o'clock, the father had not made any contact.

1. During the course of my judgment, a letter was drawn to my attention, being a faxed letter from the father.  I interrupted my judgment to peruse the document and my response to it appears in the judgment.  It is important to note, however, that, on that occasion, I said that the facsimile transmission appeared to be forwarded at 9.34, which was inconsistent with the information I had sought through Court officers, asking whether there had been any contact prior to 10 o'clock.  An explanation has now emerged which would make sense, and that is to the effect that the facsimile transmission was not received in L until 10.34 am.  The local facsimile machine had not been adjusted for daylight saving time, so that, in fact, the father failed to contact the Court until well after the scheduled commencement time for the hearing of his matter.  Thank you.

I certify that the preceding thirty five (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date: