CHAUNCEY & CLAIRMONT

[2020] FCCA 2357

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAUNCEY & CLAIRMONT [2020] FCCA 2357

Catchwords:
FAMILY LAW – Parenting – issue in the dispute the father’s time with a child aged 5 – mother seeking no time and no communication – where the father failed to file trial documents but appeared at the trial and wished to participate – where the father had the opportunity to obtain s.102NA representation but failed to pursue it – where the court considered it appropriate to hear and determine the matter on an undefended basis – where the father perpetrated severe family violence during and after the relationship – where the father has recently been convicted of recklessly causing grievous bodily harm arising out of an assault on a stranger which left the stranger with serious facial injuries – where the father poses an unacceptable risk of harm to the mother and the child – orders made for the mother to have sole parental responsibility and for the child to live with the mother and spend no time and have no communication with the father.

Legislation:

Family Law Act (Cth), ss.60CC, 61DA, 102NA

Applicant: MS CHAUNCEY

Respondent: MR CLAIRMONT

File Number: NCC 2122 of 2019

Judgment of: Judge Terry

Hearing date: 7 July 2020

Date of Last Submission: 7 July 2020

Delivered at: Newcastle

Delivered on: 7 July 2020

REPRESENTATION

Counsel for the Applicant: Mr Williams

Solicitors for the Applicant: Gillard Family Lawyers

The Respondent: In person

Counsel for Independent Childrens Lawyer: Mr Mooney

Solicitors for the Independent Childrens Lawyer: Fielden & Associates – Family & Relationship Lawyers

ORDERS

1. The child X born in 2015 (“the child”) shall live with the mother.

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

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

4. The father is restrained and an injunction is granted restraining him from attending or attempting to collect the child from any day care, preschool or school that he attends.

5. The father is restrained and an injunction is granted restraining him from attending the mother’s residence or place of work.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2122 of 2019

MS CHAUNCEY

Applicant

And

MR CLAIRMONT

Respondent

REASONS FOR JUDGMENT

Introduction

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 involves an application for parenting orders in relation to X who turns 5 tomorrow.

3. The matter was listed for trial today. The mother complied with the filing directions. The father did not. He attended by telephone link this morning. He indicated to me that he had not prepared for trial because he could not afford to do so.

4. That excuse rings very hollow when this is a case in which the father qualifies for representation pursuant to the scheme set up to assist people prohibited from cross-examining by s.102NA of the Family Law Act.  Experience suggests that if the father had applied for that representation he would have been allocated a very competent solicitor and very competent counsel.  I have run a number of trials in those circumstances.

5. The father knew that he could do that. He was advised about that during a mention in March 2020. He was warned about the consequences of not following through with that application and he has not done it. He has not complied with the trial directions and it is appropriate that I finalise the matter today on an undefended basis. If the father wishes to bring an application to spend time with his son he will have to do so in the future and at a stage when he can properly address all of the issues about him which have been very eloquently and expansively explained by the mother’s counsel.

Orders sought

1. The orders sought by the mother are that X live with her, that she have sole parental responsibility and that the child spend no time with and have no communication with the father. 

2. The father filed a response seeking very different orders. He proposed that parties have equal shared parental responsibility and that X spend regular, unsupervised time with him. However for reasons shortly to be explained that outcome would be very strongly not in X’s best interests.

3. I have read the affidavit the mother filed for trial. I have read the Case Outlines filed by the Independent Children’s Lawyer and the mother’s Counsel and I have also read a family report which was prepared by Mr B, a Regulation 7 family consultant.

Background

1. The parties began a relationship, according to the mother anyway and the father has not contradicted it, on 16 December 2014 and finally separated on 12 November 2016.  They have one child, X, who was born in 2015.

2. It was the mother’s case that the relationship was marked by severe and extreme family violence and there is no doubt that this was the case. The father has served a term of imprisonment for family violence offences.

3. When the parties finally separated they were living in Melbourne.  The mother has since come back to New South Wales where the father has spent a lot of time and where his mother lives and she has remained here with X.

4. After separation the mother facilitated the father spending time with X. It is regrettable that this occurred and it potentially placed X at serious risk of harm although he was not in fact harmed. 

5. In July 2019 the mother filed an application in this court seeking parenting orders including an order that X spend no time and have no communication with the father.

6. The father filed a response and a family report was prepared. 

7. The family report writer considered the allegations about family violence at length and said this:

   If the Court finds that the father poses an unacceptable risk of future family violence toward the mother, or due to the potential for the child to be exposed to any future family violence, it is would be recommended that the child spends no time with the father, or that such time be supervised.[1]

   [1] Family Report paragraph 94

8. Neither of those outcomes were palatable to the father and supervised time was not something that the mother was willing to consider and the matter was listed for trial. As I have indicated the father has not prepared for trial and I am going to determine the matter on an undefended basis.

X’s best interests

1. Any orders I make about X must be determined by treating his best interests as the paramount consideration. To determine his best interests I must consider the matters in s. 60CC (2) and (3) of the Family Law Act which contain primary and additional considerations and this matter turns on the tension between the two primary considerations.

2. The first primary consideration is the benefit to the child of having a meaningful relationship with both of his parents.

3. If I make the order the mother seeks X will not have that relationship with his father and that is particularly regrettable because as the family report writer pointed out the father is Aboriginal and through him X is an Aboriginal child. 

4. X will lose the opportunity to enjoy his Aboriginal culture with people who share that culture in a relational sense, because the mother has concerns about the paternal family as well as the father. 

5. The mother believes that X may have been inappropriately touched by the father’s brother. There does not seem to be much likelihood of a relationship occurring with the extended paternal family if X lives with the mother and no matter what the mother does in terms of identifying X as Aboriginal and engaging him in activities such as NAIDOC week he will not be sharing his culture with people who also share that culture. 

6. It is also a considerable loss to X if he cannot have a relationship with his father because children frequently regret the loss of that opportunity no matter how bad a parent is and X related well to the father at the family report interviews.

7. Given the father’s severe and dangerous behaviour during the relationship it had to be open to question whether X might have feared his father but that was not apparent at the family report interviews. The family report writer conducted an observation and said as follows:

   It was also observed that the child sat and remained physically close to the father, touching him and climbing over his legs at times, and such interaction was instigated by the child autonomously.[2]

   The child never appeared anxious or concerned throughout the observations, and appeared to be very comfortable and content in his interactions with the father throughout the entire 20-25 minutes of observations.[3]

   [2] Family Report paragraph 67

   [3] Family Report paragraph 66

8. The father has a side to him that a child, and obviously the mother and other partners he has had, can find very attractive so it is a loss to X not to be able to have a relationship with his father.

9. However pursuant to s.60CC(2A) the consideration in 60CC(2)(b) prevails and s.60CC(2)(b) says that the court must have regard to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

10. The risk in this case is primarily the risk of the child being exposed to family violence. 

11. The mother gave evidence about family violence perpetrated on her by the father during their short relationship. In summary she said that:

    ·    On 31 December 2014, a fortnight after the parties commenced cohabitation, the father smashed her phone, threw her to the ground and threatened to make her drink bleach.

    ·    In January 2015 the father stomped on her belly while she was pregnant with X.

    ·    On 12 July 2015 the father threatened to kill her and the maternal grandmother while pacing through the house with a knife. Police were called and took out an Apprehended Violence Order.

    ·    On 12 November 2016 the parties separated after the father threatened to “come and get” the mother after he formed the view she was being unfaithful to him.

    ·    On 20 November 2016 the father picked the mother up in his car and threatened to kill her. He struck the mother across the face and tried to push her out of the moving vehicle.

    The father was charged and was convicted of assault, making threats to kill and threatening to inflict serious injury.

    ·    On 25 January 2017 the father called the mother and threatened to have her killed.

    The father was arrested for breach of ADVO and jailed for 5 to 7 months.

    ·    On 7 April 2019 after the mother had moved to City C the father abused her and threatened to kill her.

    A further ADVO was made for the protection of the mother.

12. The nature of the parties relationship is very succinctly and correctly identified in the family report as follows:

    It is quite clear that this has been a relationship that is almost always impacted upon by dispute, conflict, arguments, and aggression. It is also apparent that family violence has been a feature of the disputes between parties. The adult relationship additionally appears to be a dangerous one, which has at time apparently included danger towards the child, such as that dispute that occurred in the father’s vehicle. Fortunately, and fortunately for the child, the ADVO does appear to be a protective factor. The volatile nature of the conflict, the violence, and the acrimony and distrust between parties, as well as that fear of the father which is apparent in the mother, is likely to render any potential for a positive, child-focussed, and respectful co-parenting arrangement unlikely.

13. The family violence has been severe. Some of the incidents referred to by the mother could have resulted in her being killed. In the incident involving the car she and X could have been killed. This is not a case in which someone has been pushed or verbally abused. The father has engaged in potentially lethal family violence. The mother has now extricated herself from that. 

14. Sometimes people who have behaved in that way have some prospect of rehabilitation. It may be that the mother will never get over her fear of the father and that might mean that the situation cannot be retrieved but sometimes a perpetrator may over time be able to show insight and show that they have learnt and can behave differently and control their aggressive impulses.

15. In this particular case however there are numerous reasons to be concerned that there is no sign of that happening for the father.

16. As the mother’s counsel rightly pointed out, the father has a history of violence which commenced well before the parties commenced their relationship. 

17. On 25 February 2014 the father was discharged from the Army on the basis that he posed a significant risk of harm to the Australian Defence Force. Among other things he was involved in an incident in which he beheaded an injured kangaroo and placed its head on a tree branch and paraded about with it and threw the live joey he took from its pouch onto the fire.

18. In a report prepared by the ADF which the mother’s counsel referred to it was stated that the ADF had formed the view that the father would not obey direction and was not likely to benefit from counselling and that he should be discharged.

19. The father subsequently entered into the relationship with the mother which involved significant family violence to her.  It also involved an incident when he assaulted a man named Mr D who the mother was seeing and after the end of the relationship he continued to make threats to the mother. 

20. The father committed a serious assault on a complete stranger in 2019. When I say complete stranger, it was a person known to the father’s then-partner but the father did not know him and the father just rushed up and assaulted him. 

21. The man was seriously injured. There is reference in the material in the tender bundle to the facial injuries he suffered and to the impact of the assault on his capacity to earn an income. 

22. This man did nothing. He just happened to be standing there and to be someone who knew the father’s then-partner and to be in the wrong place at the wrong time and the father rushed up and savagely assaulted him.

23. The father was convicted of that recklessly inflicting grievous bodily harm on that man in 2019.

24. The father poses a potentially lethal risk of harm to the mother and the child. He is extremely violent. He assaults people. He causes serious physical injury and he acts impulsively and without any reason that anyone can see. 

25. The mother would be at risk of harm if she had contact with the father in the future. X is potentially at risk of harm from him if X spends time with him in the future.  There is an unacceptable risk that he could be physically injured or psychologically harmed by being exposed to family violence. 

26. There are other issues with the father and one is that he has a problem with alcohol and has at least one DUI conviction. However whether he conveniently uses intoxication as an excuse is also of concern because he cannot have been intoxicated when he committed the acts in relation to the kangaroo and the joey. It is by no means certain that if the father ceased using alcohol, his capacity for potentially lethal aggression would go away.  The army report referred to the father as being someone who craved stimulation. 

27. There is mention in the family report of the risk of the father not being focused on the needs of the child and the risk of him doing things with the child which placed the child at risk of harm because of lack of understanding of his stage of development

28. There are many issues in the background for the father but the violence issue is the primary concern.

29. There is absolutely no doubt that as things currently stand, an order could not be made for the child to spend time with the father.

30. The family report writer, no doubt influenced by the child’s interaction with the father, suggested the possibility of supervised time and the mother has at times agreed to time supervised by the paternal family.  She has even agreed to unsupervised time in the past. 

31. It would be wrong though to consider making an order for supervised time in this matter. Among other things, as things currently stand it is impossible to see a time when time could be unsupervised and the Court does not usually make an order for long-term supervised time.  It is too problematic.

32. The other difficulty is that any time at all carries a risk that the mother might get sucked back into allowing the father to spend more time with X than he should.  She recognises the risk that the father poses and she does fear him but she also feels some guilt and regret that X cannot have a relationship with him.

33. There is a concern that if some supervised time occurred and it went well the mother might be lulled into a false sense of security and allow the father to spend unsupervised time which placed X at risk of harm.

34. An order for no time and no communication is the only order I could make. 

35. The child lives with the mother. She is obviously doing a good job looking after him.  The observations at the family report interviews of the interaction between her and X were very positive. He presented as a well-cared for, healthy child who was attached to his mother. 

36. The mother remained in a relationship with the father in which she and X could both have been killed or seriously injured for two years, and tolerated the father spending unsupervised time with him after that. That raises some concerns about the mother’s protective capacity. 

37. I am not wanting to be unduly critical of her because people can get into a cycle and lose confidence in themselves which causes them to make very poor decisions but the mother needs to accept assistance, do counselling and take advantage of whatever support she is offered because if she doesn’t, there is always the risk that she might be drawn into another future destructive relationship, misjudge people, give them the benefit of the doubt when she should not and find herself again a victim of this kind of behaviour to X’s eternal detriment.

38. If the mother is serious about keeping the father away, she probably needs to take advantage of supports that are offered to her in terms of such things as alarms at her home and lights and cameras. ADVOs and orders of this Court are only pieces of paper and to keep themselves safe people often need to go a bit further than that and I am sure the mother has been offered some help along those lines.

39. However I am satisfied she is doing a good job caring for the child and it is appropriate that I make an order that the child live with her.

40. The only order I can make about parental responsibility is that the mother have sole parental responsibility. The mother could not possibly be expected to consult with the father about making major long-term decisions for the child and the presumption in s.61DA of the Family Law Act does not apply.

41. I am going to make orders in terms of the orders sought by the mother, which I note are supported by the Independent Children’s Lawyer. 

42. I thank the Independent Children’s Lawyer for their attention to preparing the tender bundle. 

43. The Independent Children’s Lawyer has made an application that the father make a contribution to the costs of the Legal Aid Commission in relation to this matter and the amount sought is $4,500.00. I assume that no application has been made in relation to the mother because she is legally aided. 

44. The Independent Children’s Lawyer submits that the father should pay that amount because the Independent Children’s Lawyer has been required to do a substantial amount of work to get all the relevant evidence before the Court, including the evidence about the father’s Army history, and the father has not been cooperative in taking a realistic position in the matter.

1. There is no evidence that the father does not have the capacity to pay. I am not, however, going to make the order because I can take into account any other relevant matter and in my view making such an order could place the mother at potential risk of harm. 

2. The orders I have made mean that the father has lost the right to have a relationship with his child and no matter how much everyone else may say that that it would be wrong and unsafe for him to do so the father is a father and he does not accept that.  He wants a relationship with his son. 

3. I have made orders that this not to happen. That will be bitter enough for the father. If I also order that he pays $4,500.00 to the Legal Aid Commission he may turn his wrath on the mother when the Legal Aid Commission starts to chase him for the money.

4. In light of the father’s nature and his capacity for violence I consider that making that order could place the mother at risk and the application is dismissed.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date: 1 September 2020

[4] Paragraph 56