Casboult and Casboult

[2014] FCCA 2403

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASBOULT & CASBOULT [2014] FCCA 2403

Catchwords:
FAMILY LAW – Final parenting orders sought by mother – adjournment of hearing sought by father refused – matter proceeded undefended – mother primary carer – family violence perpetrated by father against mother and children – sole parental responsibility to mother – children live with mother – spend time with father as agreed.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA(1)

Applicant: MS CASBOULT

Respondent: MR CASBOULT

File Number: MLC 3136 of 2013

Judgment of: Judge Hartnett

Hearing date: 8 October 2014

Delivered at: Melbourne

Delivered on: 8 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Babic

Solicitors for the Applicant: Rigoli Lawyers

The Respondent: No Appearance

ORDERS

1. The mother have sole parental responsibility for the children of the relationship [X] born [in] 2006, [Y] born [in] 2011 and [Z] born [in] 2011 (‘the children’).

2. The children live with the mother.

3. The father spend time with the children as agreed in writing between the parties.

4. There be liberty to apply.

5. The mother’s costs of this proceedings are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3136 of 2013

MS CASBOULT

Applicant

And

MR CASBOULT

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings commenced with the mother filing an Initiating Application on 23 June 2014.  In that Application, she sought parenting orders with respect to the parties’ three children.  Those children are [X] born [in] 2006 (‘[X]’), [Y] born [in] 2011 (‘[Y]’) and [Z] born [in] 2011 (‘[Z]’) (‘the children’).  [X] is now aged eight years.  [Y] and [Z] are twins and are now aged two years. 

2. The mother sought that the children live with her and spend time with their father, as determined by the Court.  By way of interim orders the mother sought that the father’s time with the children be reserved pending completion of:-

   (a)the father submitting to psychiatric testing for the purposes of a court report in relation to his mental health issues/whether it is appropriate for him to have supervised/unsupervised contact with the children, and with the cost of such report to be borne by the father;  and

   (b)the father completing an anger management course and providing proof of completion of same to the mother’s solicitors.  

3. The mother further sought that the father not consume alcohol, drugs or any illicit substances in the presence of the children, or be in any way affected by them whilst the children were in his care or control. 

4. The mother further required the father to submit to supervised random drug screen urine testing within 48 hours of the mother’s solicitor’s request and to provide the results thereafter to the mother’s solicitors

5. Finally, the mother sought that the father provide to her lawyers proof of his attendance at a men’s behaviour change program, including certificate of completion. 

6. The mother relies upon the evidence as contained in her Affidavit sworn 16 June 2014.  I shall refer to that evidence hereafter as it forms the basis for the making of the orders as sought by the mother. 

7. The Court will accede to the mother’s application for the reasons which follow.

History

1. This matter first came before the Court on 18 August 2014.  On that day, the mother was legally represented and the father appeared in person.  The father had no material before the Court, and nor had he sought any parenting orders by way of response. An adjournment was sought by him and the Court ordered that all extant applications be adjourned until 16 September 2014 at 10.00am. On the adjourned date, being 16 September 2014, there was no appearance by, or on behalf of, the father.  Counsel represented the mother.  All extant applications were adjourned to 8 October 2014.  Order 2 of the Orders made 16 September 2014 provided for the father to file and serve a response and answering affidavit on, or before, 2 October 2014.  In order 3 of those Orders the Court provided that in the event the father failed to comply with order 2 herein, and/or appear on the adjourned date, the mother shall have leave to seek to proceed with the matter on an undefended basis.  The mother’s costs of 16 September 2014 were reserved.

2. Prior to the hearing of the matter the Court received email correspondence from the father, indicating that he was unable to attend the hearing this day.  He first indicated by email of 6 October 2014, sent in the afternoon of that day, that he required an adjournment for a period of one month to obtain legal representation. He claimed to have applied to Legal Aid Victoria for a grant of legal assistance, but said, “…this does not look likely to be available by the next hearing date”.  He further went on to state that he had notified the other parties involved, but was yet to hear their response. If any orders were made on this day “they will be appealed as everything that is put forward in the mother’s affidavit is lies”.

3. The mother opposed a further adjournment of the proceedings, and indicated that to both the Court and the father prior to the hearing date.  The father’s response was to send a further email of 7 October 2014, in the afternoon, to indicate that in the event an adjournment was not granted, he would be “appealing any decisions that are made on the day…”

4. The father was called outside the courtroom this morning and failed to answer the call.  The matter did not proceed until approximately 11.15am.  The only evidence before the Court, in respect of the orders sought by the mother, is the affidavit evidence of the mother.  In accordance with the Orders which were made on 16 September 2014 the mother sought to proceed with the seeking of final parenting orders on an undefended basis.  The Court acceded to that request. 

The Law

1. Pursuant to s.60CA of the Family Law Act 1975 (Cth) (‘the Act’) the Court is required, in deciding whether to make a particular parenting order in relation to a child, to regard the best interests of the children as the paramount consideration. How the Court determines what is in a child’s best interests is as set out in s.60CC of the Act. The primary considerations are set out in s.60CC(2) of the Act, and the additional considerations are set out in s.60CC(3) of the Act. Pursuant to s.60CC(2A) of the Act, in applying the considerations set out in s.60CC(2) of the Act, the Court is to give greater weight to the considerations set out in s.60CC(2)(b) of the Act which is as follows:-

   “(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

2. The mother makes her application for parenting orders on the basis that the father is exposing the children to family violence and his possible use of the drug “ice”.  In paragraph 4 of her Affidavit sworn 16 June 2014 the mother sets out the following:-

   “This application is made due to below reasons which are expanded on in this affidavit:

   i.   The father is exposing the children to Family Violence.  Previous instances of the Father’s Family Violence have included the Father physically attacking me and assaulting members of Victoria Police in front of the children.  The most recent incident occurred on 1 June 2014 in front of the [W] Police Station. 

   ii. The Father used the drug ICE towards the end of our relationship.  The Father never used ‘ICE’ in front of me and I was not sure that he was using this drug until after the separation.

   iii.          DHS and Victoria Police were involved when we separated.

   iv. The children have started exhibiting aggressive behaviour after having contact with the Father.  This is of great concern to me as I do not want the children exposed to aggressive behaviour, and Family Violence, and in turn mimicking the Father’s behaviour.

   v.  The Father has attempted self-harm and has a history of dealing with mental health issues.  I am concerned for what he may expose the children to.

   vi. The Father was on remand during late 2012/early 2013 for various incidents.  The Father may also be facing assault charges at the moment.  I do not know the exact details of the Father’s conduct but it is my understanding that these records can be subpoenaed.

   vii.    I would like to see the Father involved in the children’s lives but the children would benefit more if he were to address the above issue (sic) beforehand.”

3. Thus at commencement of the mother’s Affidavit she puts before the Court squarely, and particularly, the Court’s consideration of s.60CC(2)(b) of the Act.

4. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

History

1. The parties commenced their relationship in or about November 2001.  They moved in together into a rental property in [W] in the State of Victoria in or about the middle of 2002. 

2. At the commencement of the parties’ relationship the father was employed full-time, and the mother was engaged in studies and employed on a part-time casual basis.  Whilst the father would exhibit aggressive behaviours at the commencement of the relationship they were initially not violent.  However, by late 2009 the father’s behaviour became more aggressive and commenced to become violent.

3. In or about early 2010 the father attempted to take his own life.  The mother was not aware of this incident until the parties’ separation.  It was disclosed by the father to the Department of Human Services (‘DHS’).  By early 2012 the parties were having regular arguments.  The mother felt the need to protect the children from the father’s aggression and to provide a safe environment for the children. 

4. The father said to the mother words to the effect of, “If you leave me, I’ll kill you.  If I can’t have you, no one can”. On 17 February 2012 approximately eight police cars attended at the parties’ home to calm the father down. He was making threats.  Victoria Police applied for an Intervention Order on 18 February 2012.  On 23 February 2012 the Magistrates’ Court at [W] granted an Interim Intervention Order to protect the mother.

5. The father had also, on 17 February 2012, made a threat to kill the maternal grandmother in front of the child [X] at the [W] Police Station.  The father made a throat slashing motion and stated words along the lines of, “You’re dead”.

6. On 1 March 2012 DHS attended upon the parties’ home and made an application for safe custody of the children to the Children’s Court after overhearing the father saying that he would kill the DHS workers in the event that they attempted to stop him seeing the children.  The father was ordered to undertake anger management and counselling. 

7. On 19 April 2012 the father punched the mother in the back of the head.  He proceeded to physically attack her, including choking her, and screaming words along the lines of, “Die bitch, die!”  The children were distressed as they witnessed this incident. 

8. On 20 April 2012 the mother left the father taking the children with her.  This was the parties’ final separation.  On 21 April 2012 she gave a statement to Victoria Police as to the assault perpetrated upon her by the father on 19 April 2012. 

Post Separation

1. After the separation the mother was advised by Victoria Police that the father was affected with the drug ‘ice’.  That is detailed in the Department of Human Services Addendum Report to the Melbourne Children’s Court Family Division dated 1 August 2012 which is annexed and marked as exhibit MW5 to the Affidavit of the mother sworn 16 June 2014 (‘DHS Addendum Report’). 

2. In April 2012 the father attended the maternal grandmother’s home and removed [Z] in breach of an Interim Intervention Order.  Victoria Police intervened on the same date and returned [Z] safely to the mother’s care.  DHS was present during this incident and a support worker was assaulted by the father.

3. On 10 May 2012 the father threw all of the mother’s personal belongings onto the front lawn.  He also stated to DHS that he wanted to, “end it all” as detailed in a Confidential Court Report from the Department of Human Services to the Melbourne Children’s Court Family Division dated 1 March 2012 annexed and marked as exhibit MW1 to the Affidavit of the mother sworn 16 June 2014 (‘DHS Report’). 

4. On 16 May 2012 the father threatened to kill the maternal grandmother.  On 25 May 2012 the father told [X] over the telephone that he would kill the mother, as detailed in the DHS Report.

5. On 29 June 2012 the father attended at a home where the mother was with the children.  He grabbed the child [Z] despite attempts by the mother to try and stop the father, and proceeded to speed away with the child in a car with one car door open and the child unrestrained.  Victoria Police charged the father with a number of charges as a result of this incident.

6. In or around late January 2013, the father had a physical altercation with his then partner in front of the child [X].  Victoria Police was involved. 

Present Circumstances

1. [X] is in year three at [school omitted].  She has numerous extracurricular activities, and is close to her mother, and feels protective of her at times.  She loves her father, but finds it difficult to manage his aggression.  She appears to be copying her father’s behaviour.  The mother sets out some examples in paragraph 37 of her Affidavit sworn 16 June 2014, which include that in or around January 2013, [X] confronted the mother’s partner’s younger brother [name omitted] with a pocketknife and threatened his wellbeing.  The pocketknife was given to [X] by the father.

2. The twins are turning three in November of this year and are active and happy children.  The mother does not doubt that the father loves all of the children.  She wants, however, for the children to be safe. 

3. The mother is currently in full-time employment with [omitted].  She has re-partnered and has a child of that relationship, [A] born [omitted] 2013.  Her partner, Mr A, assists her with all the children and they have a good relationship with him.  Mr A has a daughter from a previous relationship who is aged six years and she regularly spends time with the family.  The children all get on well.

4. The mother is in good health.  She does not drink, except on social occasions, and does not smoke.  She is close to her family and wants the children to have a good relationship with their father free of violence and aggressive behaviour.

5. The father has consumed illicit substances specifically the drug ‘ice’.  During the parties’ relationship he was diagnosed with depression and prescribed antidepressants.  His conduct toward the children, Victoria Police, and welfare workers from DHS is a major concern for the mother, and she requires the father to be psychiatrically assessed before a regime of time spent with could be put in place.

Recent Incidents

1. On 26 May 2014 the father sent the mother 88 text messages in a single day.  On 1 June 2014 during scheduled changeover at [W] Police, the father parked his car directly blocking the mother’s car.  He approached the mother’s car with a hoodie over his face and attempted opening her car door. 

2. On 4 June 2014 Victoria Police applied for and obtained an Intervention Order on behalf of the mother and children. 

Consideration

1. The mother has sought a sole parental responsibility order in her favour, a matter to which I shall return. On the evidence provided by the mother, and as set out in her Affidavit sworn 16 June 2014, which includes the DHS Report, the children should continue their residence with their mother.  Currently there is a need to protect them from physical and psychological harm, from being subjected to, or exposed to abuse, neglect, or, in particular, family violence perpetrated upon their mother by the father, and also upon them. This is the overriding consideration for the Court.  No time spent with should occur presently, and any consideration of such would require the inclusion of certain conditions imposed upon the father. 

2. The children are too young and immature at the present time to express a view as to their living arrangements.  They have a reliable, solid and loving relationship with their mother, and a confusing one with their father.  The father has no apparent capacity to provide for their needs, including emotional and intellectual needs.

3. Many family violence orders have been made, necessitated by the father’s conduct, and the mother and children’s need to seek safety. 

4. DHS concluded in 2012 that the twins, [Y] and [Z], had been exposed to a serious and prolonged incident of family violence that required substantial police resources to bring the situation under control.  The DHS Report noted that a police report confirmed that the father had used [Z] as a shield during a siege situation that required attendance of the family violence unit, and critical incident response, as well as other units.  As a result of this incident it is likely that [Y] and [Z] were emotionally harmed.  It is likely also that they were both placed at risk of physical harm, whether directly intentional or not.  Both were highly vulnerable, their age at the time being four months, and both were at risk of serious harm.

5. The DHS Report noted the mental health difficulties of the father and his anger management difficulties. 

6. The DHS Report also noted that [X] had been exposed to an incident of family violence, whereby her father had threatened physical harm to her grandmother, in her presence, at a police station.  [X] had disclosed that she felt sad during this incident.  Such an incident was described as being emotionally harmful to her.

7. At the time of the preparation of the DHS Report the parties were together.  They expressed shock at child protection involvement, but indicated they wanted to move forward in a constructive manner with the child protection unit.  All three children were assessed as likely to suffer significant harm.  The DHS Report recommended that the children be placed on a supervision order for a period of 12 months with conditions.

8. On 22 March 2012 the children were placed on an Interim Accommodation Order to their mother after a serious incident of family violence.  In May 2012 DHS arranged for supervised visits between the father and his children.  Such visits were subsequently suspended as a result of the father’s violent behaviour in the interim. 

9. The DHS Addendum Report noted that a detailed safety plan had been put in place, regarding a visit by the father to the Departmental officers, due to the father’s history of violent, aggressive and erratic behaviour. 

10. In light of the above evidence the presumption of equal shared parental responsibility as set out in s.61DA(1) of the Act is rebutted. The father has engaged in family violence perpetrated on both the mother and the children. It is in the children’s bests interests that their mother have sole parental responsibility for them. No civil, nor appropriate, non-violent communication can occur between the parents as a result of the father’s behaviour. Any order that would require the mother to consult with the father would not promote the children’s best interests nor indeed protect the mother. Accordingly that order which the mother seeks as to parental responsibility is granted. The evidence overwhelmingly supports it.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 20 October 2014