Cammons & Arkinstall
[2021] FedCFamC1F 222
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cammons & Arkinstall [2021] FedCFamC1F 222
File number(s): CSC 569 of 2017 Judgment of: BAUMANN J Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – PARENTING – Undefended Hearing – Where the father has concerning criminal history – Where the father has spent no time with five year old child since he was four months of age – Where it is in the best interests of the child not to make any prescribed order for the child to spend time with the father. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: Allesch v Maunz [2000] HCA 40 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 29 October 2021 Place: Cairns Solicitor for the Applicant: Cuthbertson & Co Lawyers For the First Respondent: No appearance For the Second Respondent: No appearance Solicitor for the Independent Children's Lawyer: Collier Lawyers ORDERS
CSC 569 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CAMMONS
Applicant
AND: MR ARKINSTALL
First Respondent
MS ARKINSTALL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That the mother have sole parental responsibility for the child X born … 2016 (“the child”).
2.That the child live with the mother.
3.That the father is restrained from removing the child from the care of the mother or from any person, place or institution, including school and after school activities, without an order of the Court permitting him to do so.
4.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That the father has consistently failed to appear before the Court and has not pursued any application for time with the child in this Court, despite occasionally filing material. If the father wishes to set aside the Orders made today in his absence, then any application he files within thirty (30) days shall be listed before the Honourable Justice Baumann pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 the pseudonym Arkinstall & Cammons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
X will turn five shortly. Since he was approximately four months old, his parents have not lived together. Since separation, the father, Mr Arkinstall, has spent no time with the child. The father is 34 years of age and appears now to reside in South-East Queensland. The mother, soon to turn 39, has been the primary and sole carer of X all his life. She lives in North Queensland. The evidence before the Court reveals that whilst the parties separated in February 2017, proceedings were commenced by the mother as early as August 2017, in which she sought orders that the child spend no time with the father.
The father responded, at that time, with a Response that sought that the child live with the mother and that the father spend with the child on weekends and during holidays. The matter was initially filed in the Federal Circuit Court of Australia, as it was then known. The matter came before her Honour, Judge Willis, in October 2017 where her Honour made orders that the mother have sole parental responsibility; that the child live with the mother and that the father had no contact with the child. She also made an order that the father be restrained from removing the child from the care of the mother. Perhaps reflective of the difficulties which the father has experienced, her Honour, at that stage, made an order that:
18. The Registrar is DIRECTED to obtain the sentencing remarks of the Father from the B Town District Court of 19 October 2017.
Her Honour also noted the serious high-level family violence had led to the father’s incarceration. The troubled case management history from that point is reflected by the history, which is briefly as follows.
On 8 August 2018, Registrar Boyd ordered that all outstanding applications are dismissed and the proceedings, by that stage in the Family Court of Australia, having been transferred by Judge Willis on 18 October 2017, be removed from the active pending cases list. However, the Registrar gave leave to “reinstate provided that an Application is made within 24 months of the date of this order.”
Almost 12 months after that order, the father filed an Application in a Case which included the orders that he sought, being that he be permitted to send mail to the child through the Independent Children’s Lawyer; he be permitted to speak to the child by telephone; requesting the Independent Children’s Lawyer to proceed with the psychiatric assessment and:
5. Following the father’s release from lawful custody, both parents are to register for Children’s Contact Services and attend intake appointments at C Family Services, City F.
From this Application in a Case, it is clear that, at that time, the father was imprisoned. It is not abundantly clear when he was released. However, what is clear is that there are many occasions from that point, while the matters were in the Court, that the father failed to appear. Perhaps reflective of the difficult history and behaviour of the father, acknowledged by his own family, the paternal grandmother was given leave to intervene in the proceedings on 12 February 2020. She filed a Response, as directed by the Registrar on 2 April 2020, seeking an order, effectively, that failing agreement, X spend time with her for three continuous days twice a year, on not less than two months notice.
The mother swiftly responded with a Reply to the Response filed by the paternal grandmother, indicating the child spend no time with the paternal grandmother. Registrar Stoneham, on 10 June 2020, made an order in which it was noted that the father apparently had been released from incarceration on or about 22 May 2020. The notation further indicated that the father had informed the Independent Children’s Lawyer that “he would not intend to seek time with the child during COVID-19 restrictions.”
The mother was, as indicated, opposed to the father spending any time with the child or that the child spend any time with the paternal grandmother. That has been her consistent position. A Family Report was prepared by family consultant, as he then was, Mr D, and released to the parties in July 2020. The report did not support the father’s position.
This appeared to lead, one may well understand, from the father’s perspective – to the father disengaging once again from the process on a number of occasions. By 9 July 2021, the paternal grandmother had indicated she intended to file a notice of discontinuance, and no longer engage in the process. She has not done so. By order of Senior Registrar Spink, a second Family Report, termed as an “Updated Family Report”, was ordered. The report was dated 28 April 2021 and before the Court. It indicated that interviews by telephone had occurred out of the Cairns registry on 30 March 2021. The report writer, Ms E, conducted a telephone interview with the father and the paternal grandmother.
She made observations of X with the mother on 31 March 2021, having earlier conducted interviews with the mother the day before. She had access to extensive subpoena material, including material from South Australian Police Service, Victorian Police Force, Queensland Corrective Services, and the Parole Board. I have read the Family Report. The evaluation of the child expert commences at paragraph 87 and continues as follows:
87.The parties separated in 2017 after a 12-13 month relationship when the child was three months old. Their separation involved a physical altercation at the children’s hospital when X was an infant and required surgery. This resulted in police pursuing and obtaining a protection order against Mr Arkinstall. Ms Cammons and X had no further contact with Mr Arkinstall after the protection order was made and subsequently moved from South Australia to Queensland. Mr Arkinstall has not had contact with X since he was three months old and Ms Arkinstall has never met her grandson. Ms Cammons then sought court orders for the child to live with her and for him to have no contact with the father and paternal grandmother. This matter involves serious allegations of family violence, and allegations of drug and alcohol misuse.
88.The protection order between the parents will expire in 2022. The parents provided different versions of events that led to the protection order being issued by police, which reportedly resulted in Mr Arkinstall being incarcerated. The family violence in this report, if accurate and valid, raises multiple concerns regarding risk in that the potency of the violence was high. Mr Arkinstall has had a long history of alleged family violence that has included other relationships with women, extended family members, members of the public (e.g. nurse and persons in the community), police sieges and contraventions of protection orders. His behaviour would be considered very severe and dangerous as his conduct includes allegedly choking Ms Cammons, the paternal grandmother and another female; actions that are violent, aggressive, and impulsive which are associated with lethality. Further indicators of Mr Arkinstall's behaviour that suggest the violence to be potent includes monitoring and stalking, threats to kill, intimidation, and substance and alcohol abuse. His behaviour also suggests he has no regard for the law or authorities where he has committed offences while on probation or on bail. Mr Arkinstall appeared to have no insight into the impact of the alleged family violence on the mother, child, and paternal grandmother during interview. It was uncertain whether Mr Arkinstall has completed a men's behaviour change program.
89.Mr Arkinstall appears to continue to exert his power and control over Ms Cammons despite that their relationship ended in 2017, where he has allegedly made threats to take X from Ms Cammons. His proposal of spending time with the child once a month poses a significant risk to the mother and to the child. The recurrent threat to Ms Cammons physical safety and to abduct the child has resulted in significant psychological and emotional harm to her.
90. Mr Arkinstall spoke about his alcohol abuse and his relationship with alcohol. He reported he stopped drinking in 2015 although stated he has consumed alcohol up to 40 times since then. He rationalised that drinking six alcoholic drinks is not comparable to how much he previously consumed. He said he has never sought professional assistance or support for his alcohol abuse in the past. Mr Arkinstall's alcohol consumption is a risk factor given his own acknowledgement of his alcohol dependency since the age of 15. If Mr Arkinstall were to have contact with X and consume alcohol to excess, the probability of him behaving aggressively and violent is very high and would ultimately place X and others in danger or at risk. Mr Arkinstall's extensive criminal history dates back to 2004 where he has committed crimes in four states. The subpoena material indicates that most of his crimes were committed when he was under the influence of alcohol and suggests a long history of anti-social behaviour. Given that Mr Arkinstall has not addressed his relationship with alcohol and sought adequate support for his alcoholism, may suggest there is high risk of relapsing.
91.Ms Cammons expressed concern when Ms Arkinstall forwarded photos of X and passed on her PO Box address to the father, which resulted in Mr Arkinstall sending a threatening letter to her and voice message on her phone when he was released from prison. Ms Arkinstall recognised her fault in passing on Ms Cammons's personal information. However, this oversight caused Ms Cammons to assess her safety and hence, is proposing X have no contact with Ms Arkinstall as it may increase her hypervigilance and fears for her safety in the event X spends time with the paternal grandmother. It is the writer's opinion that the risk is not in terms of Ms Arkinstall spending time with X but of Mr Arkinstall seeking information from her about the child and Ms Cammons.
92. X is a young boy who has specialist needs because of his autism diagnosis and ADHD. Ms Cammons highlighted her concerns if X were to have a change to his routine and the impact this would have on his behaviour. As she is X's full time carer, and ensures he attends his allied health appointments, Ms Cammons knows how to manage his behaviours and can predict and anticipate when he may not be able to cope with a situation. X has also needed a lot of medical input from infancy and continues to be monitored by medical professionals with a further routine operation later this year. At age four, X is solely dependent upon his mother for his care. If X were to spend any time with Mr Arkinstall or Ms Arkinstall, it is highly unlikely that he would cope without his mother being present. Given Ms Cammons's fears for her safety and the current protection order, it is not recommended she accompany X in order for him to spend time with his father or paternal grandmother.
93. Ms Cammons disclosed her history of illicit drug use and her criminal charges and denied any current drug use. She admitted she smoked marijuana during her pregnancy and that she sought medical advice at the time. X is a young child who has specialist needs and is solely dependent on his mother to care for him. Ms Cammons presented as child focussed in interview and implied that X is a priority in her life, where she ensures he attends specialist appointments and receives adequate-support for his autism and ADHD. It would be a concern if Ms Cammons were to relapse and commence smoking marijuana or using illicit drugs whilst the child is in her care, as it would reduce her capacity to care for him and place him at risk of harm.
94. X does not currently have a relationship with his father or his paternal grandmother, and in order for that to occur, he would need to spend regular time with them and require Ms Cammons to facilitate a relationship with them. Ms Cammons did not wish for X to have contact with Mr Arkinstall or Ms Arkinstall and felt that he would not gain or benefit from having a relationship with them. If orders were made for the child to spend time with the father, the time could occur at a contact centre where it could supervised. However, the option of Ms Cammons facilitating X's time with Mr Arkinstall or that it occur at a contact centre are not suitable based on the following: the history of the alleged family violence; that supervised time at a contact centre is not sustainable option in the long term; and also because of X's particular developmental needs given his Autism and ADHD. Furthermore, in the event orders were made for Mr Arkinstall to spend time with X, it is of the report writer's opinion that it would be highly probable he may breach court orders given his past history of contravening orders and continual offending behaviour.
95. Ms Cammons has cared for X since birth, and has made many decisions on her own with regards to his health, appointments and his needs. The parties do not communicate with each other. Mr Arkinstall was agreeable for Ms Cammons to make long term decisions with regards to X's care. If shared parental responsibility is considered, communication between the parents is required and this would place the mother at risk of future family violence and cause further fear for her physical safety. If the court determines that sole parental responsibility is given to one of the parties, it is recommended the responsibility lie with X's primary caregiver, his mother.
Ultimately, Ms E recommended that:
(a)the mother have sole parental responsibility of X;
(b)that X live with the mother;
(c)that the father have no contact with X; and
(d)that the paternal grandmother have no contact with X.
I accept these recommendations as well founded.
Notwithstanding this long history, two Family Reports and innumerable attendances before Registrars, the father has, again, failed to appear today. He does so in circumstances where I am satisfied, through the efforts of the Independent Children's Lawyer, it has been brought to his attention that the matter is before the Court today. As he would have known from orders of the Court, his personal attendance was required. Noting that he lives in South East Queensland, there is no record that he has attempted, in any way, to engage the Court and appear today.
I am absolutely satisfied that it is in the best interest of the child that the child live with the mother, that she have sole parental responsibility, and that there should be no order for the father to have prescribed time with the child.
I have indicated to the mother who did appear today, and the legal representatives, Mr Cuthbertson, on behalf of the mother and Ms Collier, the Independent Children's Lawyer, that I would not be prepared to make, today, an order that the father have no time. Rather, it would be in the best interests of the child that the order not prescribe time. This means that the father would, if he wished to spend time with the child, need to actually do something, which he has failed to do for nearly four years now. If he does so; puts proper affidavits before the Court, the mother would need to understand that the Court may well be required to consider making orders that he spend time with the child. But until then, she has no obligation as a matter of law to facilitate time.
The question is, should the Court make an order today? It is not controversial that a Court exercising the judicial power of the Commonwealth, which this Court does, as this is a superior court of record, must always observe the obligations of procedural fairness. The Honourable Justice Kirby, in the well-known decision of Allesch v Maunz [2000] HCA 40, identifies that the principle of procedural fairness to be applied by a Court, is to allow a party in a civil procedure to appear and to be heard. If a party chooses, there being no compulsion on a party to engage in a civil process if they do not wish to do so, and knows what orders are likely to be made against him or her if they did not appear, then the court is – provided it is satisfied that it should do so – entitled to make an order.
As the record will reflect today, I have been informed that, as long ago as 7 December 2020, the Independent Children's Lawyer in this matter had, in a case outline filed on that day, identified for the Registrar the orders that she would seek.
With great respect to the Registrars who have touched the file since then, and whilst they have done everything to provide procedural fairness to the father in this case – as they were entitled to do – it is not clear to me that procedural fairness has been always at the forefront so far as it reflects on the mother’s position.
She has been the sole parent of this child since separation, when the child was four months of age. The father has – when not in prison – spent no time with the child or sought to have spent time, to pursue his application. I suspect there may be some child support issues, because at one stage, the father brought some application about child support, but they are matters for another agency and not for this court, in my view.
I have, in exercising discretion, decided I will make final orders today, but with a condition.
The order that issues from the court will contain this notation in these terms: It is known that the father has consistently failed to appear before the court, and has not pursued any application for time, in this court, despite from time to time filing material. If the father wishes to seek to set aside the order made today in his absence, then any application he files within 30 days shall be listed before the Honourable Justice Baumann pursuant to the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
I am satisfied on the evidence before the Court (untested as it may be), that the orders at the commencement of these reasons are in the best interests of X at this time.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 October 2021
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