CHADWELL & RATTRAY

[2021] FCCA 695

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADWELL & RATTRAY [2021] FCCA 695

Catchwords:
FAMILY LAW – Parenting – where the father filed an Application seeking orders permitting him to spend time with his children aged 13, 12 and 5 – where the mother filed a Response proposing no time and detailing in her supporting affidavit the father’s perpetration of extensive, severe, life-threatening family violence – where a five year ADVO was recently made for the mother’s protection – where the mother also raised concerns about the father’s cannabis use, alcohol use, possession of firearms and habit of forming relationships with under-age girls – where after the mother filed her Response the father filed a Notice of Discontinuance – orders made for the children to live with the mother and spend no time and have no communication with the father – mother to have sole parental responsibility.

Legislation:

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

Applicant: MR CHADWELL

Respondent: MS RATTRAY

File Number: NCC 3939 of 2020

Judgment of: Judge Terry

Hearing date: 4 March 2021

Date of Last Submission: 4 March 2021

Delivered at: Newcastle

Delivered on: 4 March 2021

REPRESENTATION

The Applicant: No appearance

Solicitors for the Respondent: Joplin Lawyers

ORDERS

1. The children X born in 2008, Y born in 2009 and Z born in 2015 (“the children”) shall live with the mother.

2. The mother shall have sole parental responsibility for the children.

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

4. Pursuant to section 68B of the Family Law Act 1975 for the protection of the children the father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

THE COURT NOTES THAT:

A.These orders have been made in the father’s absence. If the father files a further application for parenting orders in the future he will need to demonstrate that there has been a significant change of circumstances and properly address the allegations made against him in relation to family violence, drug use and alcohol abuse or it is likely that his application will be dismissed at a preliminary stage.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3939 of 2020

MR CHADWELL

Applicant

And

MS RATTRAY

Respondent

REASONS FOR JUDGMENT

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 an application for parenting orders filed by Mr Chadwell (“the father”) on 27 October 2020. 

3. The father had not seen his three children X, 13; Y, 12; and Z, 5, since around August 2018. He sought an order that the children live with him and on an interim basis he sought a recovery order and an order that the children spend supervised time with the mother. 

4. It took some little while for him to serve the mother, but she was served and she filed a response on 11 February 2021. In her Response and supporting affidavit she raised some serious concerns about the father which I will detail shortly and on 1 March 2021 the father filed a Notice of Discontinuance. 

5. The mother sought alternative parenting orders in her Response and she is entitled to proceed with her application for those orders. The father is on notice of what the mother is seeking, which is that the children live with her, that she have sole parental responsibility, that the children spend no time and have no communication with the father and that a section 68B order be made to provide some protection for her and the children.

6. The mother raised a raft of very serious concerns about the father in her affidavit.  One was that he commenced a relationship with her when she was 14. The oldest child, X, was born when the mother was only 16, and she went on to have Y and Z.

7. The mother detailed a number of instances since separation when she had good reason to believe that the father has entered into further relationships with under-age girls of around the age of 14.

8. The mother formed a relationship with the father, went to live with him and had the children but on her evidence, and the father has not filed any documents to contradict it, the relationship involved very serious family violence which could have resulted in the mother or the children being physically injured or even killed. 

9. The mother also described many incidents of verbal abuse such as being called a fat useless cunt or a fat cunt.

10. The mother said that following X’s birth the father visited her in hospital and became extremely angry and picked the baby up and threw the baby at his sister’s partner in anger. She said that the baby was caught and was not hurt. 

11. The mother said that she did not want to return home after this but the father demanded that she do so and said that if she didn’t he was going to kill her and her family. The mother was then only 16 years old. 

12. The mother said that shortly after X’s birth she confronted the father about some numbers on his telephone which suggested that he was communicating with someone else.  She said she woke up the following day in hospital and her father was told that she had been dropped off at hospital following a quad bike accident. The mother does not know what happened and is suspicious that something happened in the home to cause her to be injured and taken to hospital. 

13. The mother described threats by the father to kill her and to kill people generally and to the father referring to people as dog cunts and sluts. 

14. She described a number of occasions when the father threatened her or the children with an unregistered rifle.  There was an occasion after Y’s birth when she had to flee the house with him.  She was later able to recover X.  She said that the father was running around the paddock screaming and firing the rifle. The mother said that she managed to get into the car and drove off but the father chased the car, shot at the boot and smashed the back windscreen.

15. The mother said that following this the parties were separated for six months.

16. In August 2010 an ADVO was taken out to protect the mother. The father was subsequently charged with breach of the ADVO and there was a further separation but sadly as too often happens in these kind of relationships, the parties reconciled and the violence continued. 

17. The mother described an incident on New Years’ Eve 2010 when the father was arguing with her sister and pushed her sister and spat in her face and then started pushing the mother. 

18. She described an incident in 2011 when the father became angry when they were in the car. She said that he threatened to drive her and the children off the road and then started to physically assault her, causing her a split lip and a burst eye vessel. She said that the children witnessed this violence and were screaming and crying.

19. There was an incident in 2013 where the father attempted to break into her parents’ home through the window. The police were called and a provisional ADO was issued for the mother’s protection but the mother refused to testify and the ADVO application did not proceed and the relationship continued. 

20. The mother said that there was an incident in 2017 where the father choked her to the point where everything went black and she started to see stars. 

21. She described a further incident where the father took her phone, threw it down the paddock and went to get his rifle.  She said that she ran from the house with some of the children and the father chased her carrying the rifle. 

22. Finally, in June 2019, the mother and the father separated.  The mother said that she felt that could no longer remain in a violent relationship as “I was concerned for the safety of the children and myself”. 

23. The children have been exposed to significant family violence over a number of years.  It is not a question of blaming the mother.  She was also a victim. People get sucked into these situations and can find it very difficult to extricate themselves, but the result of it has been that the children have been subjected to or exposed to significant and indeed life-threatening family violence perpetrated by the father.

24. The violence continued after separation. The father retained Y for a period of time against the mother’s wishes.

25. The mother was eventually able to get him back following an incident in August 2018.

26. The mother said that she agreed to X spending time with the father and Y because Y wanted to see X. The parties agreed to meet on B Street for changeover. The mother said that the father attacked her through the car window by punching her and tried to pull her out of the car.  X was in the back seat and father yelled at her, “Hurry up and get the fuck out of the car or I will kill your dog”. 

27. The mother handed X over to the father and he drove off but as he left he told the mother he was not going to return her. The mother called the police.  They caught up with the father and when they did he alighted from his car and ran off into the bush.

28. The police threatened to bring dogs to the scene and the father reappeared. The police retrieved both children and delivered them to the mother and a final ADVO was made for the mother’s protection. 

29. The mother said that for a little while the father continued to harass her and that Y disclosed some extremely concerning information to her about the father having an under-aged girlfriend and using a rifle and assaulting him. However there was then a period of peace. The father did not attempt to see the children and a couple of years passed in which were no incidents. The mother re-partnered and the children lived safely with her. 

30. The mother said that in August 2020, shortly before the father filed his current application, six cars turned up at her home at 5.00am. The father was in one of the cars and the cars drove up and down her driveway beeping their horns. The mother called the police and the father was again charged with breaching the ADVO. 

31. The mother said that after he was charged the father kept calling her, saying things like, “The worst that can happen is I get locked up but I will always be released” and telling the mother that she had made “a fucking mistake” and he was coming for her. 

32. That led to the father again being charged with breaching the ADVO. He was convicted of the breaches of the ADVO and on 1 September 2020 a fresh ADVO was made for the protection of the mother and the children for five years. It is in force until 2025.

33. In addition to raising concerns about family violence the mother also raised concerns in her affidavit about the father’s cannabis and alcohol use and his possession of guns is also a significant concern. 

34. The mother provided information about the children in her affidavit and I am satisfied that they are being well cared for and that it is appropriate that I make orders that the children live with the mother. 

35. There are no circumstances under which I could make an order for equal shared parental responsibility. It is entirely appropriate that I make an order that the mother have sole parental responsibility for the children. 

36. It is also appropriate to make a no time, no communication order and a section 68B order. Given what happened throughout the relationship, the father poses a significant risk of harm to the mother and the children. His behaviour creates a risk of people being killed and injured. There are no circumstances under which it would be appropriate to make an order for these children to spend time with the father.

37. In light of what happened in August 2020 and the father’s attitude to the ADVOs and the constant charges against him, the mother remains at risk of harm. I hope that she takes some practical steps to protect herself, because ADVOs and any orders this Court makes are simply words on a piece of paper.  The mother needs to see a domestic violence organisation and make sure that she takes practical steps to protect herself, her home and her children. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date: 9 April 2021