Curran and Hammond and Anor

[2016] FCCA 2127

FEDERAL CIRCUIT COURT OF AUSTRALIA

CURRAN & HAMMOND & ANOR [2016] FCCA 2127

Catchwords:
FAMILY LAW – Parenting – child aged 5 – where the father and paternal grandmother failed to comply with trial directions and were not permitted to take part in the trial – where the father perpetrated serious family violence on the mother during the relationship – where the father has had problems with alcohol abuse and violence throughout his adult life and also has mental health issues – orders made for the mother have sole parental responsibility for the child and for the child live with the mother and spend no time with and have no communication with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 68B

Applicant: MR CURRAN

First Respondent:	MS HAMMOND
Second Respondent:	MS CURRAN
File Number:	NCC 2296 of 2013

Judgment of: Judge Terry

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Newcastle

Delivered on: 4 April 2016

REPRESENTATION

Solicitors for the Applicant:               Aston Legal

(Given leave to withdraw after an unsuccessful adjournment application)

Counsel for the First Respondent:  Mr Bates

Solicitors for the First Respondent:

Nash Williams Wotton

The Second Respondent:

Counsel for the Independent Children’s Lawyer:

In Person

Ms Court

Solicitors for the Independent            NLS Law

Children’s Lawyer:

ORDERS

1. The solicitor for the applicant is granted leave to withdraw from the proceedings.

2. The second respondent is granted leave to withdraw from the proceedings.

3. The father’s application is struck out and dismissed.

4. The child X born (omitted) 2011 (“the child”) shall live with the mother.

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

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

7. Pursuant to section 68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from removing the child from any school, day care centre, extra-curricular activity or from the care of any person with whom the mother has placed the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2296 of 2013

MR CURRAN

Applicant

And

MS HAMMOND

First Respondent

And

MS CURRAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment was delivered orally and has been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the oral decision amenable to being read.

2. I have before me an application for parenting orders in relation to X who was born on (omitted) 2011 and who has recently turned five. 

3. The proceedings were commenced by the father in September 2013.  They were initially before Judge Coakes who has since retired. They then went before Judge Myers and since last year they have been before me. 

4. In October 2015 I listed this matter for a final hearing. I made an order about the filing of trial material and it required the father, the mother and the paternal grandmother who had been joined as a party to file trial documents by 11 March 2016.

5. I also made an order for the father to undergo a Carbohydrate Deficient Transferring (CDT) test within fourteen days and depending on the result of that test a further CDT Test. 

6. The father did not do the first test and therefore no other tests were requested, as whether they could be requested depended on the outcome of the first test.  

7. The mother complied with the order about filing trial documents; she filed a trial affidavit of herself and of the maternal grandmother and she is here today represented by counsel ready to proceed with the trial. 

8. The father did not file any trial material. He appeared today represented by a solicitor and sought an adjournment.  

9. No satisfactory information was provided about why the father could not have complied with the trial directions. He has not been incarcerated during the last five months. There was nothing to stop him complying with the trial directions.  He had not complied with them nor has he done any CDT tests and the matter is very old.   

10. The Court cannot accommodate repeated adjournments of matters of this kind and it would have been fundamentally unfair to the mother and X to adjourn the matter. They need some finality in the proceedings. I refused the father’s application for an adjournment and I dismissed his application.   

11. The paternal grandmother was joined as a respondent a considerable time ago. She was ordered by Judge Coakes to file a response and affidavit in support but she has never done so and she also did not comply with the order for the filing of trial documents.

12. I indicated to the paternal grandmother that I was not willing to grant her an adjournment either. She had no application on foot for me to dismiss and I simply proceeded to hear the matter without her taking part.   

13. Both the father and the paternal grandmother can of course bring another application in the future. The paternal grandmother probably would not need to establish any particular circumstances to enable her to do so. The father would have some work to do before he would get very far with another application though because he has failed to prosecute the one he brought in 2013.

The evidence 

1. The mother relied on her affidavit and the affidavit of the maternal grandmother Ms R filed on 10 March 2016.

2. I received some material tendered from the subpoena packets and I accepted into evidence the family report prepared by Ms D, a Regulation 7 family consultant.

3. The mother went into the witness box and answered some questions. She seeks orders that X live with her, that she have sole parental responsibility for him and that he spend no time with and have no communication with his father.

Background

1. The mother and father commenced cohabitation in Queensland in February 2010 and X was born in (omitted) 2011.

2. The parties separated in May 2011 when X was a few months old and thereafter he lived with the mother in New South Wales.  According to the chronology prepared by the mother’s counsel the parties continued to have some interaction and from the mother’s affidavit it seems that there was an attempted reconciliation in December 2011 before a final separation following an incident in August 2012.

3. Between May 2011 and August 2012 X had some contact with the father because the mother continued to have contact with the father.

4. In August 2012 there was a serious argument between the parties and the father took X and locked himself in the bathroom. The mother called the police who recovered X from the father and gave him to the mother. Thereafter the father did not see X and in September 2013 he filed an application in this court seeking parenting orders.  

5. The mother’s position from the very beginning was that X should spend no time with the father. However the judge then dealing with the matter made an order for supervised time and if there was to be any time at all that was the only appropriate order that could have been made at that stage because X did not know his father and there were the violence allegations. 

6. After the order was made the father spent some supervised time with X at a contact centre but it was interrupted when he was charged with contravening an Apprehended Domestic Violence Order (ADVO) taken out for the protection of his then partner Ms L and spent some time in jail.

7. It seems that the father was in jail and then out and then in again. He was finally released from jail in respect of the offences against Ms L in December 2014 and some further supervised time occurred in 2015 but it was ended by the contact centre and in light of the allegations the mother makes about family violence it is relevant to read onto the record the reason why the contact centre ended the time.

8. In a letter to the father dated 19 September 2015 the Acting Co-Ordinator of the (omitted) Children's Contact Centre said as follows:  

   I am writing to you, to inform you that your supervised contact with X has been suspended until further notice. Your behaviour when informed that your visit was cancelled by the Lives with Parent was both threatening and inappropriate. Not only did you continuously yell aggressively at me, but you also distressed children and other service users within the building. 

9. The father has spent no time with X since September 2015.  

10. In her trial affidavit the mother gave evidence about numerous instances of family violence. I do not want to distress her so I am not going to go detail them in these oral reasons; the mother notes in her affidavit that it was very distressing for her to have to think back on the things that had happened and remember them for the purpose of putting them in an affidavit. That is unfortunately one of the sad outcomes of matters like this going through the Court system. People who make allegations have to particularise them, there is no way around that and recalling the details when somebody has been subjected to serious family violence can be traumatic and extremely distressing. 

11. I indicated during my oral reasons that I would include details of the mother’s allegations in the settled judgment and pursuant to that I note that the mother alleged that:

    ·In early 2010 the father grabbed her by the left wrist and shook her arm hurting her.

    ·On another occasion in early 2010 the father punched her in the left collarbone. She was in pain and sought medical attention but told the doctor her injury was the result of a fall.

    ·Later in 2010 the father head-butted her in the face and she suffered bruising to her face. Her face was very sore and she went to the doctor who arranged an X-ray to confirm that she had no broken bones.

    ·When she was 15 weeks pregnant with X the father grabbed a handful of hot chips and rubbed them in her face. When she tried to get her phone to call the police the father grabbed her by both arms and shook her and then struck her in the stomach. The mother called the police who attended. She was taken to hospital by ambulance and admitted overnight. Scans showed that the baby was unharmed but the mother sustained bruising on her arms.

    The police applied for and obtained a Protection Order to be in force for 2 years.

    ·When the mother was about 7 months pregnant the father pushed her so hard that she fell backwards and stuck the wooden post of the bed. She drove herself to hospital and was examined and was referred to a counsellor at the hospital.

    ·Prior to X’s birth the mother was lying on the lounge. The father was drunk and grabbed her by the ankle and pulled her off the lounge and she struck the floor. She felt extreme pain in her groin.

    ·On many occasions the father grabbed her by the arms and shook her violently resulting in bruises on her arms.

    ·The father had a habit of aggressively shoving his chest at her and shouting at her.

    ·On many occasions the father when drunk punched holes in walls and doors and broke furniture and photographs. On one occasion he smashed a window.

    ·On three occasions the father smashed her mobile phone.

    ·The parties separated in May 2011 after an incident where the father pushed the mother with open palms from the lounge room to the kitchen.

    ·The father was verbally abusive both during and after separation. On one occasion after the parties’ separation in 2011 he threatened to shoot the mother during an argument.  

    ·In December 2011 the parties attempted to reconcile and thereafter the mother spent time at the father’s home on a few nights each week. In August 2012 they argued and the father verbally abused the mother and forcefully pulled X from her arms and locked himself in the bathroom. The mother called the police who attended and retrieved X. The father was aggressive to police who threatened to taser him.

12. I accept the mother’s evidence about the violence. It is detailed and credible. The father did not do what was required to take part in the hearing and challenge it and the mother’s allegations are consistent with what is known about the father outside of this domestic relationship.  

13. The father has a lengthy criminal record dating back to the Wyong Children’s Court in 1998. He has convictions for destroy and damage property, common assault; resisting an officer in the execution of his duty; offensive language; and numerous convictions for contravening an ADVO which significantly predate his relationship with the mother.

14. There are pages of contravene ADVO, assault and destroy and damage property convictions and I then have the mother’s allegations about violence and  the letter from the contact centre describing his behaviour in September 2015. I also have the fact that after these proceedings were commenced the father was charged with four counts of contravening an ADVO in respect of his then partner Ms L.  The family report writer referred to the fact that his own parents had taken out ADVO’s against him in the past.

15. I accept the mother’s evidence about the violence perpetrated on her and it is exceptionally concerning.

16. There is nothing to suggest that the father has at any point in his life dealt with his problem of a propensity for violence.  He is not someone who it would be safe to have around a young child or indeed any child unless there was evidence that he had dealt with his issues of violence and there is no evidence of that nature before me. 

17. The other issue in relation to the father is his alcohol consumption because another thread through his criminal record is offences relating to alcohol. He has a drive with mid-range PCA in 2001 and has other convictions for driving offences. The mother gave evidence about his drinking during their relationship and there is recent evidence to suggest that the father has an ongoing problem with alcohol consumption. 

18. During the hearing documents was tendered relating to events on 15 February 2015 and 20 May 2015. On both of those occasions the police were called to the home the father was sharing with his parents because of his behaviour while intoxicated.  

19. On 20 May 2015 the paternal grandmother called father’s parole officers to the house because of her concerns about his drinking. 

20. When the parole officers arrived the father was in the garage. They finally managed to get him to come outside and they said that upon the garage door being opened a strong smell of alcohol came wafting out. They observed that he was in a dishevelled state and seemed to be heavily under the influence of alcohol. His speech was slurred, he appeared to have urinated on himself and he was so aggressive and verbally abusive to the parole officers that they left the premises. 

21. How he was not charged with breach of parole on that occasion I do not know but he wasn’t.   

22. The father failed to do the CDT test that I ordered him to do in October 2015 and there is not a skerrick of evidence before me to suggest that he has overcome what is apparently an extremely serious longstanding problem with alcohol consumption - another reason why it would be very unsafe to have him around a child. 

23. Another concern about the father is that he has mental health problems of long standing, possibly intertwined with the alcohol issues.

24. On 18 February 2015 the paternal grandparents called the police and told them that the father was saying that he did not want to live anymore and had tied a rope up and said he was going to hang himself. Police attended and found a rope tied to the rafters and the father was taken to hospital.   

25. There are serious concerns about the father’s mental health and the father has done nothing during the life of the proceedings to try to dispel those concerns. Again it makes him a person who it would be unsafe to have around a child.

X’s best interests

1. Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s.60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.

2. As the mother’s counsel pointed out during submissions the primary considerations are the benefit to the child of having a meaningful relationship with each of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and s.60CC (2A) says that I have to treat the second consideration as the more important.

3. In her case outline document the Independent Children's Lawyer – and I do not mean to be critical of her, it is probably just an infelicity of expression – said that there was no dispute the child would benefit from a meaningful relationship with both of his parents.

4. There may be no dispute that most children will benefit from having a meaningful relationship with both their parents if their parents are able to safely look after them and be a good role model for them and not subject them to harm but that is a general proposition and in this particular case I do not accept that there will be any benefit to X in having a relationship with the father, nor will it be possible for him to have a meaningful relationship with him unless and until the father deals with his problems with his alcohol abuse, violence and mental health issues.

5. X would be unsafe in the father’s care at present. There is an unacceptably high risk, almost a certainty, that he would be exposed to abuse, family violence, or neglect because of the father’s alcohol consumption if he spent unsupervised time with the father.

6. He may be physically safe if he spent supervised time with the father but when people have the propensity for violence that the father has and no willingness to admit that they have that propensity or to make any changes in their behaviour even supervised time can be unacceptable for a child. 

7. A person with a propensity for violence and an inability to recognise that they have that propensity can go into a supervised situation and behave in ways which are intimidating and threatening to a child, so even supervised time would not necessarily keep X safe and that is demonstrated by the fact that the father simply could not help himself, he had to abuse the workers at the contact centre. This is certainly a case where even supervised time would not keep X safe from verbal abuse. 

8. I could not consider making an order that the father spend time with X. 

9. The mother is doing a very good job looking after X.  He has been diagnosed with autism, although as I indicated to the mother current thinking might suggest there should be a consideration of whether he has suffered developmental trauma. The mother has taken him to the necessary health professionals.  He is receiving appropriate assistance.  The mother is following the directions she receives from the health professionals.

10. The mother had a bit of a falling out with the family report writer because the family report writer was quite critical of the mother for having left X in a violent situation. I do not consider that she should be criticised for what has happened to X. She was the victim in this situation. 

11. People who find themselves in this kind of situation often act in contrary ways.  Perpetrators of violence can be charming on occasions.  They apologise sometimes.  They often have ways of making the other party feel that what has happened is their fault and that if only they had not set the perpetrator off nothing would have happened. 

12. The mother in this case gave evidence that she wanted X to have a father and that is not an uncommon situation.  Sometimes people will remain in a relationship long after they should have left it simply because they have a misguided view that it is better to have a father no matter how many problems the father may have than no father at all.

1. The mother was the victim of assaults by the father and I can understand her feeling somewhat affronted if she felt that the family report writer was not sensitive to her situation although I do not want to criticise the family report writer either. I wasn’t there and I do not know what happened.

2. I do urge the mother though, as I did when she was in the witness box, to consider having some domestic violence counselling. She is out of that relationship now but it is very easy to get back into that sort of relationship and once you are a little way into such a relationship it can be very hard to get out of it. I would strongly urge the mother to have some domestic violence counselling. I cannot stress that strongly enough.  She will be doing the right thing for her son if she does. 

3. I am also not critical of the mother for not agreeing to the father spending time with the child at the time of the family report interviews.  The family report writer took a certain view about that but I am not minded to be critical of the mother for it given that it was always her position that the father should not spend time with the child and there were serious issues of family violence in the matter.

4. The mother is currently doing an excellent job looking after her son. It is entirely appropriate that I make an order that the child live with her. 

Parental responsibility

1. As Counsel for the Independent Children's Lawyer pointed out the presumption of equal shared parental responsibility in s.61DA of the Family Law Act does not apply because of the violence.

2. The mother sought an order for sole parental responsibility and it is the only order I could make. I could not possibly ask her to consult with the father and attempt to reach agreement with him about any issues to do with X.  The mother is making good decisions for X at the moment and I am going to make an order for sole parental responsibility. 

The father’s time with X

1. The only order I can make is that the father spend no time with and have no communication with X. He is an unsafe person to be around a child. There is no sign that he has taken any steps to deal with his problems which have been in existence since he became an adult from the look of his criminal record although he has a Children’s Court conviction as well so they may predate that. 

2. There is some evidence in the material that perhaps the paternal grandfather was a drinker and was violent. The father may be a victim of his own upbringing; that can happen and if that is the case I am very sad for the father. However unless he deals with his own problems there is nothing anybody can do for him and if he is a victim of his own upbringing I am certainly not going to have the cycle repeat itself with X by having X exposed to the father. 

3. There will be an order for no time and no communication. I am also going to make an s.68B order to the effect that the father is restrained and an injunction is granted restraining him from removing the child from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed him. I am going to make that order for X’s personal protection.

4. There will be no orders in relation to X spending time with the paternal grandmother. If she wishes she can bring an application and that will have to be dealt with on its merits if and when it is brought. 

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date:  18 August 2016