Cowan & Braun
[2023] FedCFamC1F 1008
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cowan & Braun [2023] FedCFamC1F 1008
File number(s): NCC 1480 of 2022 Judgment of: SMITH J Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing –Father no engagement until day of undefended hearing – Father denied any knowledge of proceedings until day before undefended hearing – Adjournment for evidence of service and notice - Father refused to permit his criminal law solicitors to accept service in June 2022 – Father refused to accept documents from correctional officers when incarcerated in June 2022 – Father had his criminal law solicitors contact mother’s family law solicitors referring to proceedings and attempted to negotiate parenting orders varying ADVO with mothers solicitors – Father on notice of these proceedings from June 2022 - Service requirements for prisoners complied with – In the alternative service requirements dispensed with – Further listing for Undefended hearing – s102NA – Father did not avail himself of legal representation – No cross examination - Father participated to extent permissible.
FAMILY LAW – Father previously convicted of serous family violence offences and incarcerated – Father convicted of serious animal cruelty offence – Father poses a high and unacceptable risk of physical and psychological harm to child – no relationship between child and father - child 14 – child wants no contact and no communication based on his experience of family violence – child says he will disobey any order for contact or communication - child’s views should be given significant weight.
FAMILY LAW – Orders: mother to have sole parental responsibility for the child – father spend no time and have no communication with the child – mother restrained from allowing child to spend time or communicate with father – s 68B injunction restraining the father – personal protection of the mother, the child, the child’s sibling and the maternal grandmother with whom child lives – passport order – change of child’s surname
Legislation: Australian Passports Act 2005 (Cth) Pt 2, s 11(1)(b)(ii)
Crimes (Administration of Sentences) Act 1999 (NSW) Pt 2, s 77
Evidence Act 1995 (Cth) Pt 4.1, s 140(2)
Family Law Act 1975 (Cth) Pts VII, XI, ss 60CC, 65Y(l)(c)(ii), 68B, 68C, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 1.3, 2.6, rr 1.31, 2.38
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 20 November 2023 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Gallimore Solicitor for the Applicant: Lucy Urach & Associates The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Rugendyke Solicitor for the Independent Children's Lawyer: Joplin Lawyers ORDERS
NCC 1480 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COWAN
Applicant
AND: MR BRAUN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
Parental Responsibility
1.MS COWAN born 1984 (“the mother”) is to have sole parental responsibility for making decisions about the major long term issues concerning the child, X BRAUN (who may also be known as X COWAN) born 2009 (“X” or “the child”), including the care, welfare and development of the child. These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
Live with
2.X shall live with the Mother.
Spend Time
3.MR BRAUN born 1982 (“the father”) shall not spend time with, nor communicate by any means with, the child.
4.The Mother is restrained from permitting or allowing the child to spend any time with, or have any communication with, the Father.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth), MR BRAUN be restrained from:
(a)attempting to contact X, MS COWAN, B and / or MS C by any means, including through a third party;
(b)approaching or coming within 1,000 metres of any place where X, MS COWAN, B and / or MS C might reside from time to time;
(c)approaching or coming within 1,000 metres of any place where X, and or B might attend school;
(d)approaching or coming within 1,000 metres of any place where X, MS COWAN, B and / or MS C might work from time to time;
(e)approaching or coming within 1,000 metres of D Street, Suburb E NSW;
(f)approaching or coming within 1,000 metres of F Church, Suburb G NSW;
(g)approaching or coming within 1,000 metres of H Street, Suburb J NSW;
(h)approaching or coming within 1,000 metres of K School, L Street, Suburb M NSW.
6.Pursuant to s 68C the injunction in Order 5 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of X, MS COWAN, B and / or MS C.
7.If a Police Officer believes on reasonable grounds that MR BRAUN, at which the injunction is directed, has breached the injunction they may arrest them without warrant.
Sole Passport/International Travel
8.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) the Mother is permitted to apply for a passport for the child without the consent of the Father.
9.Pursuant to section 65Y(l)(c)(ii) of the Family Law Act 1975 (Cth), the Mother is permitted to travel to a place outside Australia with the child whether or not the Father has consented to such travel.
Change of Name
10.The Applicant Mother may do all things and execute all documents to cause X’s name to be changed to X Cowan and, for this purpose, this order shall be sufficient authority for the Registrar of Births Deaths and Marriages to effect such change on the Mother’s application for change of X’s name.
Provision of orders
11.The Mother may provide a copy of these Orders to any school attended by the child or by B.
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 Cowan & Braun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These are parenting proceedings to determine what final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) are in the best interests of X born 2009 and aged 14 (“the child”).
The applicant is Ms Cowan, born 1984 and aged 39 (“the mother”). The first respondent is Mr Braun, born 1982 and aged 41 (“the father”). The second respondent was Ms N (“the paternal grandmother”) however she discontinued her involvement in these proceedings. An Independent Children’s Lawyer (“ICL”) has been appointed to represent the child’s interests.
The parties met through mutual friends in about 2007, commenced cohabitation in 2008, had X in 2009, separated in late 2019, reconciled in early 2021, and separated on a final basis on 10 January 2022.
X is the only child of the relationship. The mother has another child, B, 17, from a former relationship. The father says that B is also his child and seeks orders permitting time with and communication with B. However, the father has no parental rights in regard to B who is not the subject of this proceeding. I will refer to X and B jointly as “the children” for convenience.
The mother and the children presently live with Ms C (“the maternal grandmother”). The mother is unemployed and currently studying.
The father currently lives with the paternal grandmother at P Street, Suburb Q, Western Australia. The mother says this is as a condition of his continuing parole following his conviction and incarceration for family violence offences against her and the father did not dispute that. The conviction followed a trial at which the mother, X and B gave evidence. The father is also currently the subject of an ADVO protecting the mother, the child and B. That ADVO is the subject of a current NSW Police application to extend it for 20 years.
This case involves allegations of serious and persistent family violence perpetrated against the mother and the child by the father, including the acts for which the father was convicted and incarcerated. The father has also been convicted of an animal cruelty offence and has allegedly engaged in many other acts of animal cruelty in which he involved the children.
There are also property proceedings on foot. On 4 August 2023, prior to the father engaging with the proceedings, orders were made bifurcating the parenting and property proceedings with the parenting proceedings to be heard first. The property proceedings remain on foot and will be determined in due course. For reasons set out, below the final hearing in these parenting proceeding were heard on an undefended basis over the father’s objection.
X, at aged 14, strenuously opposes any orders that would require any time or communication with the father and has said he will not comply with any such orders. He fears the father and wants to able to live his life without having any involvement with him and without these proceedings hanging over his head like the “sword of Damocles”.
The father effectively contests all of the mother’s evidence, including as I understand it the matters in respect of which he has been convicted. He sought orders that the proceedings be “thrown out” or further adjourned.
The ICL and the mother sought orders that the mother have sole parental responsibility, that the child live with the mother, spend no time and have no communication with the father, that there be injunctions pursuant to s 68B of the Act protecting the child, the mother, B and the maternal grandmother with whom they live, which orders will be consistent with the NSW ADVO which presently expire in late 2024, subject to the extant 20 year extension application, passport and travel orders for the mother, and for the right to change the child’s surname to Cowan which X also seeks.
For the reasons set out below, I find that the father has committed serious acts of family violence against the mother and the child and poses an unacceptable risk of both physical and psychological harm to the child, as well as to the mother, B and the maternal grandmother with whom the child lives and spends time. The presumption of equal shared parental responsibility has been rebutted. There is no meaningful relationship between the child and the father and no possibility of such a relationship in future as a consequence of the father’s conduct. The child is of an age where his views should be given significant weight.
For the reasons set out below, having considered all of the relevant considerations,[1] I make orders in line with those proposed by the ICL and the mother.
[1] See s 60CC of the Act.
PROCEDURAL HISTORY
The mother first commenced proceedings on 13 November 2019 in the Federal Circuit Court of Australia.[2] The parties reconciled and the mother filed a Notice of discontinuance on 2 February 2021. The mother commenced these proceedings on 27 May 2022.
[2] Proceedings number NCC3686/2019.
On 5 July 2022 the Associate to a Judicial Registrar contacted the correctional officers at the R Correctional Centre who transferred the call to the father as requested. The father was said to be unwilling to answer the telephone or otherwise participate in the Court event. The Court accepted that information.
The father did not take any steps in these parenting proceedings until the undefended hearing on 6 September 2023. He says he only became aware of the existence of these proceedings on 5 September 2023. That assertion is demonstrably untrue.
On 6 July 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia Division 1.
On 14 July 2022, Interim Orders were made on an undefended basis: granting the mother sole parental responsibility; imposing an injunction restraining the parties from permitting the child to spend time with or communicate with the father; restraining the father from attending upon or being in the vicinity of any residence or school at which the child resided or attended, and from contacting or attempting to contact the child by any direct or indirect means.
On 21 September 2022, the second respondent paternal grandmother filed her response, which claimed relief in both the property and parenting proceedings.
On 29 September 2022, an ICL was appointed to represent X’s interests.
On 3 April 2023, the Court granted the second respondent paternal grandmother’s oral application to withdraw her response to the extent it concerned parenting orders.
On 5 June 2023, the Court made an order pursuant to section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) for the father to be made available to appear before this Court in August 2023. Court staff contacted the S Correctional Centre on the court date in August 2023 and were informed the father had been released from custody.
This matter first came before me for case management on 4 August 2023. The mother, ICL, paternal grandmother and intervenor in the property matter appeared by legal representatives. The father did not appear.
Given the stress being experienced by the child awaiting a determination of the parenting proceedings, the father’s failure to engage, and the complexity of the property issue with both the paternal grandmother and another intervenor involved, the matter was bifurcated with the parenting proceedings to be heard first, and the parenting proceedings listed first for undefended hearing on 6 September 2023 by Microsoft teams. Orders were made for Court books and other matters.
6 September 2023 – Undefended Hearing
On 5 September 2023 the mother’s solicitor’s office sent the father an email with a link to the online Microsoft Teams Undefended Hearing on 6 September 2023. The mother’s solicitor used the same email for the father they had been using, without response, throughout the proceeding.
On 6 September 2023 the father appeared in the proceedings for the first time. He said that this was the “first time that I have the opportunity to respond”[3] … “[b]ecause yesterday was the first time that I became aware of this”.[4] He applied for a “stay” which I understood, given he was a self-represented litigant, was an application for a vacation of the order for an undefended hearing and an adjournment to allow him time to properly engage in the parenting proceedings.[5]
[3] Transcript 6 September 2023, pg. 2 line 13.
[4] Ibid line 24.
[5] Ibid pg. 3 lines 38–43.
Mr Braun was questioned by me. After a chain of questions he eventually, reluctantly, admitted that he lived with his mother.[6] Mr Braun was then asked “[n]ow, you live in the house full time. Does your mother live there full time with you?” and answered “[a]s far as I’m aware, yes”. I asked Mr Braun:[7]
HIS HONOUR: Are you saying that your mother, who you live with - - -
[MR BRAUN]: Yes.
HIS HONOUR: - - - who has been participating in the proceedings, has not mentioned them to you? So that you never knew about them until yesterday? And be careful - - -
[MR BRAUN]: That’s right.
[6] Ibid pg. 4 lines 22 – pg. 5 line 5.
[7] Ibid pg. 10 lines 23–31.
The father was advised there were penalties for misleading a judge and replied:[8]
[MR BRAUN]: There are more severe penalties for interfering with a family, your Honour.
[8] Ibid pg. 10 lines 43–47, pg. 11 lines 1–3.
The mother advised the Court that there was evidence to establish that the father was aware of the proceedings well prior to 5 September 2023 and had elected not to participate, but she was not able to lead that evidence on 6 September 2023 as she had not anticipated his appearance.
Although it seemed unlikely that Mr Braun was not aware of the existence of the proceedings, absent evidence of service and notice, I vacated the hearing on 6 September 2023, made the mandatory s 102NA order given the final ADVO of late 2022 protecting the mother and child, advised the father to contact Legal Aid to obtain representation soon as possible, and stood the matter over to determine the issue of service and notice.
I required the father to notify the Court and parties of his email addresses in open Court. On 7 September 2023, the ICL’s office sent the relevant materials to that email address.[9] I accept the evidence that the materials were sent on 7 September 2023 and reject the father’s statement to me on 20 November 2023, considered below, that he did not receive any such email to his account.
[9] Affidavit of Ms T filed 3 October 2023.
I reserved the mother’s and ICL’s costs “pending the Court’s determination as to the disputed factual issue as whether or not [Mr Braun] was aware of these proceedings prior to 5 September 2023” and stood the matter over for further mention with the Notation:
H.The question of whether or not the matter should proceed by way of undefended hearing at a later date will depend upon the Court’s determination as to whether or not the father was aware of these proceedings prior to today.
4 October 2023 - Mention
The matter came before me again on 4 October 2023 by Microsoft Teams. The mother and ICL appeared through counsel. The father again appeared for himself. The second respondent paternal grandmother had filed a Notice of Discontinuance on 3 October 2023 in respect of the property proceedings to which she was still a party. No objection was taken, and the second respondent was removed from the proceedings by consent.
On the issue of service and notice the mother read and relied upon a number of affidavits:
(1)Affidavit of Ms Urach solicitor filed 12 September 2023;
(2)Affidavit of Mr W filed 29 July 2022;
(3)Affidavit of Ms Y filed 2 August 2022;
(4)Affidavit of Mr Z filed 11 April 2023;
(5)Affidavit of Ms AA filed 4 August 2022.
Ms Urach’s affidavit annexed, amongst other things, an email enclosing a letter from Ms Urach to U Lawyers dated 27 May 2022 stating:[10]
[Braun & Braun]: Family Law Matter
We refer to the above matter.
We would be pleased if you could confirm, by no later than 4pm Monday 30 May 2022, whether you hold instructions to accept service.
(Emphasis in original)
[10] Affidavit Ms Urach filed 12 September 2023 Annexure A.
The reply email,[11] dated 30 May 2022 from Ms BB, lawyer at U Lawyers, said:
We note your letter requesting confirmation whether we have instructions to accept service on behalf of our client in respect to family law matters.
We are seeking our client's instructions and in circumstances where we received your correspondence on Friday at 5:28pm and our client is currently incarcerated we are unable to provide you with a response today.
We are arranging a telephone call with our client and anticipate we can provide you with a response later this week.
[11] Ibid Annexure B.
A further email from Ms BB to Ms Urach dated 9 June 2022 said:[12]
We spoke with [Mr Braun] this morning.
We do not have instructions to accept service of the documents.
[12] Ibid Annexure C.
The father did not dispute that U Lawyers were his solicitors acting in relation to criminal and ADVO matters. There is no reason to doubt the veracity of their statements in these open communications.
Whilst the father instructed his solicitors not to accept service, the father was aware by no later than 9 June 2022 that these family law proceedings were on foot and that the mother was attempting to serve him. That is more than a year prior to his statement on 6 September 2023 that he only became aware of these proceedings on 5 September 2023.
Ms Urach then attempted service on the father through the V Correctional Centre. Correspondence dated 9 June 2022 was sent to V Correctional Centre with a cover letter stating:[13]
We confirm that our office acts for [Mr Braun’s] former partner in family law proceedings. The enclosed sealed envelope contains Court documents filed in the […] Registry of the Federal Circuit and Family Court of Australia that our office is required to serve on [Mr Braun].
(Emphasis in original)
[13] Ibid Annexure E.
It was returned with a handwritten note: “Inmate refused to take his brief. Please put in his property”.[14]
[14] Ibid.
Correspondence dated 28 June 2022 in the same terms was sent to the same address. It was returned with the handwritten note “RTS Inmate refused to accept this letter”.[15]
[15] Ibid Annexure I.
Similar correspondence dated August 2022 was returned with the handwritten note “Inmate refused to accept R.T.S”.[16]
[16] Ibid Annexure J
The father was given further multiple opportunities to see the relevant documents in these family law proceedings. He was aware the proceedings were on foot but repeatedly refused to accept service.
Mr CC, also a solicitor at U Lawyers, wrote an email to Ms Urach dated 21 December 2022 stating:[17]
I understand you hold instructions to act for [Ms Cowan].
I hold temporary instructions to act for [Mr Braun] in relation to this discrete issue. For abundant clarity, I am not instructed in relation to the current Federal Circuit and Family Court of Australia matter.
As you're likely aware, [in late] 2022, a final ADVO was made in protection of your client and the children, [B] and [X] for the period of 2 years. In effect, our client is prohibited from contacting your client or the children except via legal representatives
Our client wishes to send your client and the children a letter for Christmas.
Can you kindly confirm whether your client may accept a letter from our client if that letter is sent via an email between our offices.
I look forward to your response.
[17] Ibid Annexure L.
When taken to the correspondence of 9 June 2022 and 21 December 2022 and asked how he could have instructed his solicitors to send a letter to the mother’s solicitors referring to “the current Federal Circuit and Family Court of Australia matter”, and asking for her consent in relation to communication with the children, if he was not aware that there were family law parenting proceedings on foot, the father obfuscated, dissembled, criticised his solicitors as not being competent, but otherwise did not provide any explanation for how this letter could have been sent on his instructions if he was, as he told the Court on 6 September 2023 and maintained on 4 October 2023, unaware that family law proceedings were on foot until 5 September 2023 so that 6 September 2023 was his first opportunity to engage with the proceedings.
There was further correspondence to Mr Braun on 19 January 2023 seeking to obtain his engagement. That email was to the same email address to which the email was sent with the Microsoft Teams link for the hearing on 6 September 2023. Further attempts were made to serve Mr Braun between 4-5 April 2023 at R Correctional Centre but the mother’s solicitors were advised that Mr Braun declined to accept their correspondence.
Service and notice - findings
The father’s application to vacate the order for an undefended hearing on 6 September 2023 was that he had not been served and had no notice of the proceedings prior to 5 September 2023. The hearing of the undefended hearing was vacated, but not the undefended hearing order.
I am comfortably satisfied to the relevant evidentiary standard,[18] noting the grave nature of these findings, that the father had actual knowledge of the existence of these proceedings from no later than 9 June 2022 when he instructed his solicitors not to accept service, and that he was aware they included parenting proceedings by no later than 21 December 2022 when he instructed his solicitors to attempt to negotiate parenting orders as a way to vary the ADVO.
[18] Evidence Act 1995 (Cth) s 140(2).
I find that the father was repeatedly offered the relevant documents and intentionally declined to accept service, through his solicitors or from correctional officers, to defeat these proceedings by avoiding acknowledging formal service of the documents.
I find that the father actively and knowingly mis-lead the Court on 6 September 2023, 4 October 2023 and 20 November 2023, when advising the Court that he was unaware of the proceedings prior to 5 September 2023.
I reject the father’s statements to the Court that he only happened upon the proceedings by chancing to check an otherwise unused email account on 5 September 2023 as untrue.
I find that the father knowingly mis-lead the Court to gain the vacation of the undefended hearing order, and the undefended hearing, which was otherwise ready to proceed on 6 September 2023, and which would have concluded the parenting proceedings.
I find that the father engaged with the proceedings on 6 September 2023 to delay the parenting proceedings which would otherwise have been finalised on that date.
Service is a requirement under the Rules to ensure procedural fairness.[19] A person who may be the subject of, or affected by, Court orders is entitled to notice of the proceedings and a reasonable opportunity to participate.
[19] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) Pt 2.6.
Service is not a game in which a person who does not want to participate in proceedings, or be bound to orders, can render the proceedings of no effect by knowingly refusing to accept service of the documents when they are repeatedly offered to them, or then turn up at the hearing pretending ignorance to further delay the proceedings.
To the extent necessary, I find that the requirements of service were complied with by 9 June 2022 when the relevant documents were served on the person in charge of the prison and offered to the father who refused to accept them.[20] Further, and in the alternative to the extent necessary, I otherwise dispense with the requirements for service from 9 June 2022 given his actual knowledge that these proceedings were on foot from that date.[21]
[20] Ibid r 2.38 “Personal service on a prisoner”.
[21] Ibid r 1.31 “Court may make orders or dispense with these Rules”.
Having formed the concluded view on 4 October 2023 that the father was aware of the parenting proceedings and had the opportunity to have the relevant documents from 9 June 2022, and had intentionally declined to participate until 6 September 2023 when the parenting proceedings were listed for undefended hearing, I listed the matter for a resumption of the undefended hearing on 20 November 2023 and indicated that my reasons for proceeding with the undefended hearing would be provided in due course, as they now are.
I advised the father of his rights to participate in an undefended hearing, subject to requiring legal representation to cross examine the mother in the context of the mandatory s 102NA order.
Given that the father lives in Western Australia, that the mother should not be in the same Court room as the father so that her evidence would be by video in any event, and that since COVID‑19 the Court now regularly conducts complex final hearings entirely by Microsoft Teams, I ordered the matter to proceed by Microsoft Teams.
Mr Braun’s application for an in-person hearing was refused. He told me that he would “come to Sydney and find – and see you if I have to”.[22] He was told the matter would be by audio‑visual means.
THE UNDEFENDED FINAL HEARING – 20 NOVEMBER 2023
[22] Transcript 4 October 2023, pg 15 line 20.
Application for an adjournment or vacation of the undefended hearing
At the final undefended hearing, the mother and ICL were legally represented including by counsel.
Despite being specifically advised that the matter was to proceed by Microsoft teams, so that the mother would not be in the registry, the father travelled from Western Australia and attended the Newcastle Registry in person seeking to be seen in Court in person.
The matter proceeded by Microsoft teams as ordered with the father appearing via teams from a conference room in the registry. The father was not entitled to effectively over-turn my Orders for a hearing by Microsoft Teams by attending at Newcastle in person.
The father appeared unrepresented. He sought an adjournment. He commenced by repeating the assertion that he had first learned about the proceedings on 5 September 2023. I note my rejection of that assertion above.
The father then said that due to Legal Aid NSW’s inability to help in a timely fashion he had gone to private lawyers, but that this had not left him sufficient time to get representation and that these lawyers had told him that they did not have time to prepare and that he should appear by himself and seek an adjournment. He lead no evidence of these matters.
Given my findings that the father had known about the proceedings for more than a year and his ongoing attempts to mislead the Court on that issue to delay the proceedings, in the absence of any evidence I give no weight to these bare submissions. I find that this is merely a continuation of the father’s attempts to delay these proceedings.
In any event, given that the father was aware of the proceedings from 2022 and obtained the vacation of the hearing date of 6 September 2023 through deceit, even if the father had been unable to obtain legal representation between 6 September and 20 November 2023, I find that the interests of justice required that the matter proceed to an undefended hearing. I also take into account that I presently have over 60 matters in my docket, including many Magellan and similar matters, and that where it is clear the father was aware of the proceedings but elected to avoid service and not participate, the interests of justice require me to take into account the other members of the public who are awaiting hearings and then flow on effect to them in listings when considering and making my decision refusing an adjournment.[23]
[23] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
On these bases, I refused the adjournment and conducted and proceeded to conduct the undefended final hearing.
Substantive hearing
The father was advised of his rights to participate. He was not able to cross examine the mother due to the provisions of the mandatory s 102NA order and his failure to attend with legal representation. He did not have any documents to tender.
He made submissions that the mother’s evidence was all lies, without attempting to address the convictions, and made an application to throw the proceeding out which I took to mean dismiss the proceedings in lieu of an adjournment.
The mother and ICL relied upon the material which was to be relied upon on 6 September 2023, adding only the affidavit of Affidavit of Ms T filed 3 October 2023 as to compliance on 7 September 2023 with sending the father the relevant materials.
The mother had filed her Initiating Application of 27 May 2022. She read her affidavit filed 4 September 2023. She relied upon her Submissions Bundle dated 5 September 2023,[24] including her proposed orders.
[24] MFI A.
The Independent Children’s Lawyer relied upon their Submissions Bundle filed 5 September 2023.[25] The ICL prepared and provided a tender bundle,[26] containing subpoenaed documents for the undefended hearing. The mother and the ICL tendered certain documents from the bundle.
[25] MFI B.
[26] MFI C.
The father had not filed a Notice of Address, Reply, or any other document. The father did not provide a tender bundle or submission bundle. The father denied that he had received any material prepared by the mother or ICL for the undefended hearing as sent on 7 September 2023. I do not accept the father’s statement to that effect. As noted elsewhere, I accept the evidence of the ICL that the documents which were prepared for the undefended hearing on 6 September 2023 were emailed to the father on 7 September 2023 so that he had access to these documents, including the tender bundle, had he wished to tender any of these materials in his case.
EVIDENCE OF FAMILY VIOLENCE
The mother’s evidence as set out in her affidavit was not challenged. To the extent it is relevant and necessary to state I find her evidence consistent with the father’s convictions for violence and animal cruelty and with the available documentary evidence, internally consistent and credible.
Counsel for the mother put the allegations in four categories, for ease of consideration. Sexual violence, animal cruelty, physical violence and emotional or psychological violence.
I will go through the evidence in these categories, but as counsel for the mother and the ICL also both noted the individual acts and categories of violence each form part of a significant overall pattern of coercive and controlling family violence.
Coercion and control
The mother’s evidence was that the father was violent towards and extremely controlling of both her and the children, and the paternal grandmother, throughout the relationship.[27] She said that if she attempted to intervene when he was perpetrating family violence the father would become more aggressive, and his anger and violence would escalate and intensify.[28]
[27] Mother’s Affidavit filed 4 September 2023 at [28], [30], [31].
[28] Ibid at [38].
She said that throughout the relationship she felt completely controlled by the father in regards to nearly every aspect of her life, including when she had to leave the property and when she was allowed to return, who she was friends with, what she could speak to them about, her working hours and days, what information she could share, what internet search content she was able to view, her use of social media, and the type of phone she was allowed to use, i.e. not one with finger-print ID. He would monitor her phone by checking her text messages and phone calls.[29]
[29] Ibid at [42], [49].
The mother first separated from the father in late 2019, but then reconciled with him in early 2021, despite his ongoing acts of family violence in the intervening period as noted elsewhere. This was indicative of the coercive control and her response to it which was to seek to placate the father to protect herself, the children, and her family. On this topic I note that the mother also spent time recently speaking with the father on the telephone, to the great distress of the children.
After reconciliation she described a cycle of abuse, beginning with kind and loving actions and behaviours, soon after followed by coldness, no eye contact, silent treatment, resentment, disregarding attitudes and judgement, emotionally destabilising her and causing her to submit to his control.
The mother’s behaviours were a maladaptive fear driven response to the father’s manipulative behaviours of alternating “love-bombing” with credible serious threats. In the context of her genuine fears of the father, the mother sought to placate and appease him to minimise the extent of family violence suffered by her and the children.
Sexual and reproductive violence, coercion and control
The mother described the father: restraining her so she could not move; engaging in very forceful vaginal and/or anal sex causing extreme pain and bleeding; forced oral sex to the point of inability to breath; ejaculating up her nostrils and into her eyes; urinating on her; and chocking to the point she thought she might die.[30]
[30] Ibid at [28].
The mother said that the father would not allow her to use contraceptives, leading to unwanted pregnancy. Despite the father agreeing that the mother should have abortions, which she found distressing, he then told her the decisions to abort had been made without his approval or consent and accused her of “murdering” their babies. He then prevented her from having a contraceptive device inserted.[31]
[31] Ibid at [51].
The father then pressured her to have another child. She became pregnant but miscarried. He prevented her accessing medical assistance or from having a curette to remove the dead foetus, placing her life at risk. After the foetus was expelled after three weeks the father prevented her attending hospital to have the recommended Anti-D injection.[32] The mother’s report to police in early 2022 contains a fuller statement of these events. The ongoing pattern of alternating cruelty and loving behaviours to destabilise the mother is exemplified here:[33]
… In […] 2021, the victim had a […] miscarriage which caused her physical and emotional suffering. The accused did not allow the victim to seek required medical treatment, putting her health at significant risk. When the victim passed the pregnancy products including the foetus, the accused kept it and wrapped it up. On an unknown date in […] 2021, the accused took the victim to their property located at [DD Street] in [Town EE] with the intention of burying the foetus. The victim was distressed with this concept and the pair engaged in a heated argument in relation to this and other issues. The accused ordered the victim to get into their vehicle in which she insisted she did not want to. The accused threw his engagement ring onto the ground and then ordered the victim to her hands and knees to search for it. The victim expressed to the accused the way he was treating her was unfair and cruel, which agitated him. The accused then reversed the vehicle at speed, causing it to skid toward the victim. The victim had to dodge the vehicle to avoid being struck. The accused continued to reverse at the victim whilst she ran and screamed "Help!". The victim sought refuge under a tree and the accused stopped chasing her. The incident made the victim feel intimidated and concerned for her safety. In the days following the incident the accused was kind and loving toward the victim.
[32] Ibid at [39]–[41], [51]–[52].
[33] Exhibit A; MFI C pg. 35.
Animal cruelty and violence
The evidence of animal violence involved not only the father intentionally inflicting painful injuries and deaths on animals, but using these events to intimidate the mother and children.
The mother described an incident in which the father killed an animal and then ordered her to cut its head off with a tool. Given her distress, and delay, he grabbed the tool and hacked at the animal. He then threw the animal at her and drove off leaving her with blood all down the front of her shirt.[34] On another occasion the father left a severed animal part on the paternal grandmother’s car after arguing with her about money.[35]
[34] Mother’s Affidavit filed 4 September 2023 at [29].
[35] Ibid at [33].
The mother said there were several occasions where the father would insist that the children put down animals, activities he told the children were ‘fun’. This started for B at about 8 and for X at about 7 years of age.[36]
[36] Ibid at [37].
The mother said that in 2019 she received information that the father had killed an animal. On the next day she received a delivery from the husband. She said that along with other items there was “[an animal limb], skin and hair still attached, with the exposed flesh end wrapped in a beach towel” and beginning to decay.[37]
[37] Ibid at [43]–[44].
The father was charged with an offence of animal cruelty. He was convicted in late 2020 and was sentenced to imprisonment with a non-parole period. Later that month that was overturned on a severity appeal. He was instead sentenced to an Intensive Correction Order.[38]
[38] Ibid at [45]–[46]; Exhibit ICL1; MFI C pp 37–49 Criminal History for Mr Braun.
Physical violence
In addition to evidence of general physical abuse, including shoving her and the children when angry, the mother gave specific examples, including one incident in 2012 when the father wanted her to attend a workshop in preparation for the “crash of society” and, when she did not want to go, throwing her car keys into a fire where they melted. After she pushed the father, he shoved her into a bookcase and after she fell to the floor, he dragged her by the arm into the next room causing cuts and bruises.[39]
[39] Mother’s Affidavit filed 4 September 2023 at [32].
She said the father would often “yank” or drag the children to get them to do what he wanted, slapped B across the face at age seven,[40] and on another occasion dragged B up the stairs by his arm to fling him on the bed. She said the father strapped B and X with a belt, and hit B with a stick while yelling him to hurry up and load several heavy items into the back of his vehicle.[41]
[40] Ibid at [36].
[41] Ibid at [34].
On an occasion in 2017 when B pointed a dangerous object in X’s direction the father body punched B and shoved him to the ground. The father would not allow B any dinner, locked him out of the house that night in the cold in the t-shirt and jeans he was wearing. B slept in an old structure on the property. She says B still refers to this as “the worst night of his life”.[42]
[42] Ibid at [35].
Emotional or psychological violence
The mother said the father would often argue with the paternal grandmother and her about the children or money, threaten to kick his mother out of the house, on one occasion cutting the power to his mother’s house and locking her in when she was hiding in the toilet from him.
She said the father punched a car bonnet with his fist, would call his mother names like ‘bitch’, ‘witch’, ‘slut’ and ‘cunt’ in front of the children, and damaged precious belonging such as glassware. He also blocked his mother from their phones and prevented family contact with her.[43]
[43] Ibid at [33].
The father pressured the mother to obtain financial support from her parents. When he did not receive the financial support he expected, he would yell at her and call them “filthy cunts” and said their behaviour was equivalent to “raping their grandchildren”.[44] He told her that if she were to leave him and take the children her “parents wouldn't be around to help raise them” which she reasonably understood as a threat and took seriously, particularly given an incident in 2014 when the father threatened to kill his uncle, but did not have an opportunity to as his uncle did not arrive where expected. In 2017 the father said he intended to hire a hit man to kill the maternal grandparents.[45]
[44] Ibid at [50].
[45] Ibid at [54].
ADVO and criminal events from early 2022.
In early 2022 the NSW Police issues a provisional ADVO against the father for the mother’s protection based on her reports as noted above. The ADVO was amended two weeks later to extend to places of work or residence.[46]
[46] Ibid at [55]–[58]; Annexure A “Provisional ADVO [early] 2022”; Annexure B “Police Statement dated [early] 2022”; Annexure C “Varied ADVO [early] 2022”.
The following month the father drove to the mother’s residence, jumped the fence and walked up to the house where the mother and children were residing bringing gifts of food and multiple bouquets of flowers. He would not leave when asked to. This was captured on security cameras. He was charged with breach ADVO and denied bail.[47]
[47] Ibid at [59]–[64].
Later that month the father’s lawyer asked the mother’s lawyer whether she would accept a delivery from Woolworths. His lawyers were told she would not. The Woolworth’s truck made a delivery at the father’s instructions. Two days later the father deposited money to the mother’s bank account leaving messages in the transaction description section.[48]
[48] Ibid at [65]–[67].
Following this, the father was arrested and charged with further breaches of the ADVO and with sexual assault and intimidation. He was bail refused until the criminal trial.[49]
[49] Ibid at [69].
At trial in mid-2022, the mother, X, B and the maternal grandmother all gave evidence. In mid-2022 the father was found guilty of multiple domestic violence offences. He remained in custody on remand until late 2022 when he was sentenced to imprisonment, with a non-parole period concluding late 2022 when he was released.[50]
[50] Ibid at [70]–[71]; Exhibit ICL1; MFI C pp 37–49 Criminal History for Mr Braun.
Ongoing intimidation
The mother says that in late 2022 the father was seen at the parties Town EE property, in breach of his parole conditions, and four days later she noticed signs of an attempted break-in to the property gate.[51]
[51] Mother’s Affidavit filed 4 September 2023 at [75]–[76].
In late 2022 while driving towards the Town EE property she noticed specific objects and graffiti near the children's bus stop. The next day she noticed the same objects on top of fence posts and graffiti on the road at the end of her parent’s property, and more of the objects and graffiti nearby.
On the following day she noticed items on a fence post near her parent's home and found similar items taped together at the Suburb E property with a message written on them “1000 Years”. She says the specific objects she saw were something the father had said was a metaphor for their relationship. She says in early 2023 the father attempted to call her via WhatsApp, hung up, then sent a text with a Spotify link to a song called “A Thousand Years”. That song was one the father played on repeat after her miscarriage telling her it was not a love song but about their “aborted children”.
In early 2023 she noticed more graffiti sprayed near the property. She saw signs with letters underlined spelling X’s name.
The mother believes these and other similar messages from the father to tell her he was in the area and to intimidate her.[52]
[52] Ibid at [77]–[85], [88]–[89].
The mother says that the father was arrested for breach of parole in early 2023 and again the following month and is on bail in relation to those matters with the case adjourned to late 2023 with the father bailed to live with the paternal grandmother in Western Australia.[53]
[53] Ibid at [86], [90]–[93].
NSW Police application for a 20-year extension
NSW Police filed an application in mid-2023 to vary the current ADVO by extending it for a period of 20 years. The supporting facts refer to a charge for breaching the ADVO most recently in early 2023 noting the father had been charged with multiple incidents of domestic violence and five incidents of breaching his ADVO. [54]
[54] Ibid at [92], Annexure E “Application to Vary or Revoke Apprehended Violence Order”.
Assessment of the mother’s evidence
The mother’s evidence is not challenged as this is an undefended hearing. Nevertheless, it is appropriate to objectively consider the evidence and its likely veracity. As a starting point I note the father’s conviction for domestic violence offences following a criminal trial at which the mother, X, B and the maternal grandmother gave evidence, and his disturbing conviction for animal cruelty.
The mother’s evidence is consistent with the behaviours for which the father has been convicted, is consistent with the contemporaneous complaints, and is internally consistent.
In closing submissions, I raised with counsel for the mother the difficulty of relying on her sighting of the specific objects and related information as evidence of ongoing harassment, because of the evidentiary standard necessary for me to make such a finding.
However, after a consideration of the entire constellation of evidence and noting the relevant evidentiary standard, I accept the mother’s evidence of family violence as set out above in its entirety, including that on balance it is likely the father has continued to harass and intimidate the child and mother through leaving specific objects and song reference messages.
FATHER’S MENTAL HEALTH
The mother raises issues about the father’s mental health in her affidavit, including that she says the father was admitted to the mental health ward at FF Hospital for a month in 2014 after she says he threatened his GP and that she believes he was diagnosed with a mental health disorder.[55]
[55] Ibid at [105]–[112].
However, there is no medical evidence of the father’s mental health status. In the absence of any reliable documentary or expert opinion evidence, I place no weight upon this as a separate issue relevant to assessing risk.
Regardless of the father’s mental health status and what drives his behaviours, it is his persistent family violence behaviours that create the risks to X, the mother, B and the maternal grandparents.
MOTHER’S PARENTING CAPACITY
The mother conceded in her evidence that she has had issues with excessive alcohol consumption. She said this was a coping response to the domestic violence she experienced. She said that from 2019 she has taken steps to address her alcohol consumption and that since April 2022 she has been “almost abstinent from alcohol”.[56]
[56] Ibid at [94]–[104].
On balance, I accept that the mother has adequate parenting capacity to meet X’s physical, emotional and other needs, although I express my concern about her decision to speak with the father on the telephone from mid-2023 for a period of time, discussed below.
X
Present situation and personal characteristics
X currently attends K School. The mother says he is finding academic work difficult due to the amount of schooling missed when in primary school. She believes the impact of the family violence X has experienced has, in summary, adversely affected his academic, social and emotional development. Fortunately, X is well supported at school, though has suffered bullying, and has developed interests in art, music and sport and an interest in religion participating in weekly lessons.[57]
[57] Ibid at [113]–[122].
The major stress in X’s life is these proceedings and the father’s alleged ongoing attempts to contact and communicate with him contrary to the current ADVO.
X’s views of the father
X gave evidence against the father at the criminal trial of domestic violence offences.
The mother says X has expressed a desire not to have a relationship with his father, or any other members of the paternal family.[58]
[58] Ibid at [119].
In mid-2023 the mother accepted a telephone call from the father and spoke with him at length. When B and X realised who she was speaking to, X told her “I will throw your phone across the room if I don’t hang up”. Shortly afterwards X had chest pains, ran to the maternal grandmother, was very angry and saying words to the effect of “I've nearly got my freedom, how dare she”.[59] It was submitted that was an accurate statement of X’s views of the father.
[59] Ibid at [124]–[127].
For reasons she had difficulty explaining, the mother continued to take phone calls from the father for a period of time. I accept that this is a manifestation of her trauma response to years of family violence. Hopefully the mother will not fall into this trap again.
A Family Report was not prepared in the matter as the father had not engaged and it was not considered necessary.
The ICL has met with X. The ICL in their submissions said that “[X] instructs as follows”:[60]
[60] MFI B, ICL’s Written Submissions pp 10–12 at [54(c)].
i.[X] has a lived experience of fear with the Father. This includes watching physical violence perpetrated on the Mother and [B]. As well as being isolated, no friends, no community support, denied access to the maternal family and physical violence perpetrated on him.
ii. [X] does not see any benefit to him having a relationship with the Father nor the paternal family. In fact, [X] was very firm with the writer, particularly surrounding the paternal grandmother being engaged in the parenting proceedings, that he did not and would not engage with her regardless whether the court ordered as the paternal grandmother has in the past contravened Court Orders to make [X] available to see his Father and not supervised.
iii. [X] considers the Paternal Grandmother to have no protective measures.
iv. It is noted that the Paternal Grandmother withdraw her parenting application.
v. [X] has expressly instructed the Independent Childrens Lawyer writer that should the Court make Orders for him to spend time with his Father in any capacity, he will not attend and he will not comply nor abide by the Orders.
vi. [X] has expressed that he feels unsafe in his Father’s presence and he has real fear as to what his Father is capable of.
vii. A good indication of [X’s] views is a paragraph 125 of the Mother’s Affidavit which details the reaction from [X] once he knows his Mother and Father are in communication.[61]
viii. [X] has expressed to the Independent Childrens Lawyer that he has felt harassed by his Father’s alleged breaches of the ADVO such as letters, phone calls, markings on the road and sign posts. [X] has not felt protected by the Apprehended Domestic Violence Order.
ix. [X] has expressed a real safety concern because he firmly believes nothing will stop his Father.
x. [X] is old beyond his years due to the experiences of his childhood, in fact his instructs the Independent Childrens Lawyer to submit to the Court – [X] considers his childhood was taken from him.
[61] See the telephone conversation on 8 August 2023 referred to at pp 21–22.
I accept the ICL’s submission as a statement of X’s views.
I accept that X has no meaningful relationship with the father, is scared of the father for good reason, does not want to spend any time with or have any communication with the father under any circumstances, does not want the father to communicate with him, and will not comply with orders to do so.
I consider X’s views a rational reaction to his experience of the father’s family violence. I consider X’s views should be given considerable weight given his age, lived experience and the ongoing trauma that requiring him to spend time with, or communicate with, the perpetrator of family violence on him and the family will expose him to.
Change of name
The mother’s evidence is that she changed her and B’s surnames from Braun to Cowan in 2023 and that X wants to do the same. X has already adopted this as his surname on social media and email accounts.[62] The ICL supports this change.
[62] Mother’s Affidavit filed 4 September 2023 at [133]–[137].
In the context of X’s experience of family violence, the mother’s and B’s change of surname, and the no time and no communication orders I am making, I am satisfied it is in X’s best interests to allow this change of name to allow him a fresh start.
X’S BEST INTERESTS
Considerations
The two primary considerations, in order of weight, are firstly the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to X of having a meaningful relationship with both parents.
The father is a persistent family violence offender. In the final hearing, he called the mother’s case lies. There is neither acknowledgement of his conduct nor contrition. There is no reason to consider that if the father were to spend time or communicate with X that his behaviours would be any different. His ongoing disregard for the existing ADVO is an indication of the father’s focus on his own desires and disregard for the law, or the mother’s or X’s clearly stated wishes.
In these circumstances, allowing the father to spend any time with X, even professionally supervised, would expose X to a high and unacceptable risk of physical and psychological harm. Allowing any communication between the father and X would re-expose X to the trauma of the family violence he has experienced at the father’s hands, and been exposed to in witnessing the family violence directed at the mother and B, and would present a high and unacceptable risk of psychological harm to X. That extends even to cards and presents which would be a constant reminder of the father’s focus on him and the ongoing risks the father presents.
As noted elsewhere there is no relationship, much less a meaningful relationship, between X and the father, and nor is there the prospect of such a relationship. In any event, the need to protect X from the unacceptable risk of family violence is to be given greater weight.
X’s expressed views are rational and reasonable given the events he has been subjected and exposed to. His views should be given very significant weight.
X has good relationships with the mother, B and the maternal grandparents. He has no relationship with the father given his fear of him. He wishes to have no relationship with the paternal grandmother who he feels has not protected him and who allowed the father to spend time with him when she was meant to be supervising.
The mother has fulfilled her basic obligations to X and now appears able to provide for his basic needs. She has attempted to fulfill the responsibilities of parenthood, in the context of the difficulties she herself experienced as a subject of persistent family violence.
In subjecting and exposing X to family violence the father has failed to fulfil his most basic responsibility and duty to X of providing a safe environment. The father has displayed no capacity to provide for X’s emotional or psychological needs.
In terms of practical difficulty and expense of X spending time with a parent, the father is in Western Australia with the paternal grandmother. Given my findings on risk this is not a significant factor in any event.
There will be no change in X’s current circumstances from the orders proposed by the ICL and mother given the existing ADVO. There is no suggestion X is an Aboriginal or Torres Straight Islander child.
The mother is the primary carer for X. The mother, with the assistance of the maternal grandparents, is responsible for meeting X’s everyday needs.
The extensive history of family violence, the convictions and the ADVO’s and breaches are addressed elsewhere.
The orders proposed by the ICL are those least likely to lead to further litigation, given the father’s history of family violence and that X, at 14, has said he will not comply with any order for time or communication.
Parental responsibility
The presumption of equal parental responsibility has been rebutted by the evidence of family violence.
Given the findings of family violence against X and to which he has been exposed, and of unacceptable risk, and that it is not in X’s interests to spend any time or have any communication with the father, the questions of equal time, significant and substantial time, reasonable practicability, distances and capacity to implement co-parenting arrangement etcetera do not arise or require consideration.
X would not want the father to have any say in decisions involving his future, and allowing that to occur would perpetuate X’s subjugation to the father.
There is an ADVO preventing any communication between the mother and the father, which it would not be in X’s, or the mother’s, interests to vary.
X’s best interests are met by making an order for the mother to exercise sole parental responsibility.
ORDERS
The orders that necessarily flow from my findings are that the mother have sole parental responsibility for X, that X live with the mother, that there be an injunction pursuant to s 68B protecting X, the mother, B and the maternal grandmother from the father in relation to places of residence, schooling and work, with a s 68C order given the history of breaches, that the mother may change X’s surname, and that the mother may obtain a passport for and travel orders for X.
The ICL seeks an order extending to 1,000 metres in relation to the s 68B application. Whilst that is a significant area, given the particular history of these proceedings, I will make that order. None of these orders are inconsistent with the existing ADVO but rather supplement or compliment it.
The mother and the ICL may file applications for costs of these parenting proceedings in the usual way.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 24 November 2023
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