Cottrell and Eckert

[2019] FCCA 1755

FEDERAL CIRCUIT COURT OF AUSTRALIA

COTTRELL & ECKERT [2019] FCCA 1755

Catchwords:
FAMILY LAW – Parenting – Issue in dispute whether the father should spend time with children aged 4 & 6 – where the mother alleges severe family violence and proposes no time and no communication – where the father denies perpetrating family violence and says that he was wrongly convicted in the Local Court of multiple counts of Assault Occasioning Actual Bodily Harm and Stalk Intimidate and that the criminal justice system and the family law system are against him – where a family report was prepared which recommended no time – where following the release of the report the father’s solicitor informed the court that for the sake of his mental health and financial future the father intended to walk away – father’s application dismissed and orders made as sought by the mother – where the court is satisfied that family violence occurred and it is important that there are reasons on the file in case the father files another application.

Legislation:

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

Applicant: MS COTTRELL

Respondent: MR ECKERT

File Number: NCC 565 of 2018

Judgment of: Judge Terry

Hearing date: 6 June 2019

Date of Last Submission: 6 June 2019

Delivered at: Newcastle

Delivered on: 6 June 2019

REPRESENTATION

Solicitors for the Applicant: Katie Smith Solicitor

Counsel for the Respondent:  Whitfields Solicitors

ORDERS

1. The mother shall have sole parental responsibility for the children [X] born … 2013 and [Y] born … 2015 (“the children”).

2. The children shall live with the mother.

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 565 of 2018

MS COTTRELL

Applicant

And

MR ECKERT

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. In this matter I have a dispute about parenting arrangements for [Y] and [X]. [Y] was born on … 2015 and [X] was born on … 2013. 

3. The family unit when the parties were together also included the mother’s daughter [A] born on … 2010. During the relationship [A] believed that Mr Eckert was her father.  Presumably she now understands that this is not the case.

4. The parties separated in April 2017 following an incident the mother said involved extremely serious family violence and the father has spent little or no time with [Y] and [X] since then. 

5. The father was charged following the incident and in July 2018 he was convicted of multiple counts of assault occasioning actual bodily harm and of intimidate stalk and harass, the victims being the mother and [A].

6. The mother commenced proceedings in February 2018 seeking financial orders and in June 2018 she filed an amended application in which she also sought parenting orders.

7. It was and remains the mother’s case that the children should live with her, that she should have sole parental responsibility and that they should spend no time with and have no communication with the father. 

8. The father does not accept that this is an appropriate outcome. He says that he is innocent of the assaults and other criminal charges and was wrongly convicted, that the mother’s other allegations of family violence are fabrications and that there is no reason why the children should not be spending time with him. He filed a response seeking orders which would allow him to spend regular time with the children.

9. A family report was prepared and it was released on 8 April 2019.  The family report writer recommended that the children live with the mother, that she have sole parental responsibility and that the children spend no time with and have no communication with the father.

10. The matter is before me today following the release of the report and the father and mother are both in court.  

11. The father is represented by a solicitor, Mr Whitfield, and Mr Whitfield tells me that the father wishes to discontinue his application.  He says that the father wants to put on record that he loves his children and protests his innocence. However he feels that the family law system and the criminal justice system are in league against him and for the sake of his mental health and his financial future he intends to walk away and not battle the matter out in Court.

12. I am not going to leave the matter on the basis that I accept those protestations by the father.  I am going to put this on record.

13. I have a family report before me in which the parties and the children were interviewed although [A] was not.

14. The children did not have a lot to say. They are young and [Y] in particular does not have a strong memory of the father as it has been two years since she saw him.

15. The mother outlined to the family report writer a history of family violence which increased in potency over the course of the relationship.

16. The parties commenced cohabitation in … 2011 when the father moved in with mother. The mother said that he was short tempered but it was not until [X] was born in 2013 that the extent of his anger issues became clear to her.  She said that he would isolate her from friends and family and make negative remarks about her such as that she was “lazy” and a “fat cunt”.  She said that he controlled the money and decided where the money was spent.

17. The mother said that the verbal aggression eventually transitioned into physical violence and she began to be very frightened of the father, in particular because he kept a crossbow in the garage.  She said that she was never threatened with the weapon but the fact that it was there and the father was aggressive caused her some fear.

18. The mother consulted her GP because of her anxiety and distress. 

19. The mother said that the father would do things which intimidated her such as stomping around the house and that he stomped on her bare feet while wearing his work boots and on one occasion broke her foot. She said she had ongoing problems with a toe as a result. The mother also alleged that the father assaulted the dog.

20. The incident which led to the final separation was extremely serious.  The mother said that it began with the father yelling abuse.  She said that he grabbed her round the neck and she had trouble breathing. He threatened to kill her and put a pillow over her face, trying to suffocate her.  The mother said that she bit the father and tried to break away and [A] heard what was going on and entered the bedroom. The mother said that the father smacked her across the face and thrashed his arm out, causing [A] to fall over.

21. She said that he then yelled, “I am going to cave your head in today.  I cave people’s heads in” and he left the home.

22. The father was charged with offences arising out of that incident.  He pleaded not guilty. The mother and [A] were subject to cross-examination in court which was no doubt difficult for the mother but particularly difficult for the little girl.  The father was ultimately found guilty of the offences.

23. The mother has not permitted the father to see the children since that incident. 

24. The father’s case is that the mother is fabricating the allegations and that she was the one who was verbally abusive and angry during the relationship. However the evidence about the incident at separation was tested at length in the Local Court and was obviously tested vigorously by the father.  I do not accept the father’s assertions that he is innocent of these charges nor do I accept his assertions that somehow the criminal justice system and this Court are in league against him.

25. This Court treats family violence extremely seriously.  It is one of the considerations the Court has to take into account in determining what should happen for children.  It has numerous ramifications in a family law matter.

26. One of them is that someone who has been subjected to family violence of the nature of the violence in this case often has a great deal of difficulty accepting that the children should spend time with the perpetrator of family violence. It can make them anxious and distressed and it can have an impact on their parenting capacity.

27. I also have a situation where [A] has been subjected to violence and an order for [Y] and [X] to spend time with the father might be very difficult for [A] to accept and cause difficulties in the sibling unit. 

28. There are also considerable risks to children if they spend time with someone who is a perpetrator of family violence and who is in denial about his propensities.

29. There is a risk that the children might upset the perpetrator and be subjected to abuse. There is a risk that the perpetrator might enter into another relationship and be violent in that relationship and the children might again be exposed to that. There is also a concern about the sort of role model a person is if they commit acts of family violence and deny to the children that they have occurred.

30. The father’s claims that the mother has fabricated the allegations are very difficult to swallow given his convictions and there is mention in the family report of the family report writer viewing photographs of the mother’s injuries.

31. The family report writer commented, not unreasonably, that the description of the assault at separation suggested high levels of violence and that research suggested that strangulation and smothering were identified risk factors toward future serious abuse and lethal attack in the case of intimate partner violence.

32. It is extremely concerning that the father refuses to accept responsibility for his actions.  It means that other people in the future could be at serious risk from him, whether they are adult partners or children.

33. I am not going to let the father walk out of this Court now thinking that he can simply throw in the towel on the basis that he is under a bit of strain with his mental health and his finances and walk back into this Court in a year or two seeking time with his children.

34. Unless and until the father addresses the violence, does a perpetrators course and puts some evidence before the Court to show that his attitude has changed and his behaviour is likely to have changed, he is not going to be able to have a relationship with his children. 

35. I also want to stress to the father that even if he does those things it may be that the mother will not get over this and that there will never be a time when she can comfortably send the children to spend time with him.

36. I am satisfied that it is appropriate that I make the orders sought by the mother.  It is apparent from the family report that the children are well placed with her and that they have a loving relationship with her and with their sister [A].

37. It is appropriate that I make an order that the mother have sole parental responsibility. The presumption does not apply. I could not possibly ask the mother to consult with the father about decisions concerning the children.

38. It is also appropriate that I make an order for no time and no communication. The father poses a considerable risk to the children’s safety and an order for time would risk destabilising their mother and their place within a sibling unit which includes [A].

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 26 June 2019