Danniell & Letty (No 2)
[2024] FedCFamC1F 297
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danniell & Letty (No 2) [2024] FedCFamC1F 297
File number(s): SYC 6309 of 2023 Judgment of: SCHONELL J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – CHILDREN – where application in a proceeding was filed by father for supervised time – where mother opposes application – where mother sought injunction from father communicating or coming into contact with child – father’s application dismissed – injunction granted – no orders as to costs Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Danniell & Letty [2023] FedCFamC1F 1085
Langmeil & Grange [2013] FamCAFC 31
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Trewitt & Brock [2021] FedCFamC1A 9
Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 24 April 2024 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Ms Mallett KC Solicitor for the Respondent: Broun Abrahams Burreket Solicitor for the Independent Children's Lawyer: Mason Mia & Associates ORDERS
SYC 6309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANNIELL
Applicant
AND: MS LETTY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The father's Application in a Proceeding filed 8 April 2024 is dismissed.
2.Pursuant to s 68B of the Family Law Act1975 (Cth) the father is restrained by injunction from coming into contact with the child and/or communicating with the child either directly or through a third party.
3.The terms of Order 2 do not prevent the father seeing the child or communicating with the child in the presence of the Single Expert if deemed appropriate by the Single Expert.
4.I grant liberty to all parties to apply on three days’ written notice.
5.The mother's Response filed 22 April 2024 is otherwise dismissed.
6.The mother's oral application for costs is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
SCHONELL J
By Application in a Proceeding filed 8 April 2024 the father seeks orders to spend time on a supervised basis with his daughter. The father's application is opposed by the mother who seeks orders by way of injunction pursuant to s 68B of the Family Law Act 1975 (Cth) (“Family Law Act”). The Independent Children's Lawyer ("ICL") did not support the orders sought by the father and supported the mother's position.
The father relied on the following documents:
(a)Application in a Proceeding filed 8 April 2024;
(b)Affidavit filed 8 April 2024; and
(c)Notice of child abuse, family violence or risk filed 25 August 2023.
The mother for her part relied upon the following documents:
(a)Response to Initiating Application filed 1 November 2023;
(b)Affidavit filed 1 November 2023;
(c)Notice of child abuse, family violence or risk filed 1 November 2023;
(d)Affidavit filed 22 April 2024; and
(e)Response to an Application in a Proceeding filed 22 April 2024.
All parties made reference to the Child Impact Report dated 30 November 2023. As well, there were some documents tendered.
Some context to the current application can be gleaned from my Reasons for Judgment delivered 15 December 2023 in Danniell & Letty [2023] FedCFamC1F 1085. In that respect I incorporate into these reasons the following paragraphs from my judgment:
14Both parties contended that the other perpetrated family violence. For her part, the mother deposed that the father perpetrated family violence against her throughout the relationship and that it included verbal abuse, sexual assault and coercive and controlling behaviour. The father denied these allegations. The father contended that following the breakdown of their relationship, the mother became verbally abusive towards him.
15During the relationship, the mother had primary care and the father was significantly involved in the child’s life following her birth. It is not in issue that following the breakdown of the parties’ relationship, the father continued to have a significant role in the child’s life, which included spending substantial time on a regular basis with her.
16[In late] 2022, the mother contended that the child started tickling the mother’s private parts whilst she was getting dressed. The mother deposed that the child told her that the father would tickle her private parts. Following this disclosure, the mother continued to facilitate time between the father and child.
17The mother said she sought advice regarding how to approach the disclosure with the father from a psychologist who the parties had engaged for counselling. [In] or around [early] 2023, the mother said the psychologist told her to report the disclosure.
18The mother subsequently reported the matter to Child Story Reporter (“Child Story”). In [early] 2023, Child Story informed the mother that they would not be pursuing the matter any further.
19[In early] 2023, the mother deposed that while she was getting dressed, the child started tickling her bottom again and then moved her hands into her underwear. The mother contended that she told the child to stop and that it was inappropriate to do so. She said that the child then told her that the father does it to her. The mother said she then asked the child to show her what the father does and began recording the child.
20The mother said she subsequently contacted a child psychologist that she had engaged before, who told her to report the matter to Child Story. The mother said she then did this. An investigation was subsequently conducted by the Department of Communities and Justice (“the DCJ”).
21[In early] 2023, the mother said she received a phone call from a police officer who told her that they needed to speak to the child. [The next day], the mother took the child to the Police Child Abuse Squad in [Suburb CC]. The mother contended that she was told by the police officer that she was to not allow the child to have any contact with the father. [The following day], the mother said she told the father that both her and the child were unwell and that he should stay clear of them.
22The father has not seen the child since 2 March 2023.
23[A short time later], the mother made a statement to the police.
24[In early 2023], the mother went to the Police Child Abuse Squad again and in the presence of two police officers called the father to inform him of the disclosures made by the child. The Mother deposed that the call was recorded and that the father did not dispute the allegations raised, saying instead that she should not go to the police and that they need to figure out why the child was saying this stuff. The Father denied making any admissions.
25[On that day], a provisional apprehended violence order (“AVO”) was made against the father for the protection of the child. The terms of the provisional AVO were such that the father was prevented from having any contact with the child.
26[A short time later], an interim AVO was made against the father. The father requested that he be allowed to have contact with the child. When asked by the police officer about the request, the mother agreed to vary the interim AVO. The terms of the interim AVO were subsequently varied such that the father is not to have any contact with the child unless the contact is through the mother or a lawyer, or by way of an order from this Court. The AVO proceedings are listed for final hearing in mid next year.
…
28[In] April 2023, the father and child had a video call. The mother contended that after about 10 minutes the child said she did not want to talk to the father anymore. She said that the child became distressed and agitated following the call. The mother said that about an hour after the call, the child grabbed her arm and attempted to pull it down to touch her private parts. The mother said that when she pulled her arm away, the child said to touch her like the father does. The mother subsequently reported this to Child Story.
29The father has not communicated or had any contact with the child since this video call.
30[In] April 2023, the mother deposed that the child discovered a message on the mother’s phone that had been sent by the father for the child. The mother deposed that the message comprised of a ‘unicorn voice emoji’ which included the father saying, “would loved to have kissed you and cuddled you and maybe give you a little tickle” (mother’s affidavit filed 1 November 2023, paragraph 58). The mother contended that after hearing this message, the child began exhibiting sexualised behaviour by again attempting to touch the mother’s private parts and saying that the father touches her there. The mother subsequently reported the child’s behaviour to Child Story [in] April 2023. The mother contended that there have been at least nine ‘unicorn emoji’s” sent by the father.
31[In] April 2023, the mother said she was informed by the DCJ that the father would not be listed as a person causing harm but that he would a remain a person of interest, and that while they have substantiated that the child displays signs of sexual abuse, they cannot say the father was the perpetrator.
32The mother contended that the father has made highly sexualised comments about the child whilst they were in a relationship. Such comments are alleged to have included the father saying that the child will be “so hot at 16, [he] will probably want to ‘do’ her” and that when she is older, he “will pretend [the child] is [his] girlfriend” (mother’s affidavit filed 1 November 2023, paragraph 86).
33The father denies all the allegations made against him. The father has not been charged with any criminal offence relating to the disclosures made by the child.
…
63The mother’s counsel submitted that the Safety Plan implemented by the DCJ was supportive of the contention that there should be no time between the father and the child. She further relied upon the Court Child Expert’s observations in the Child Impact Report as follows:
16. Consideration was given regarding the current AVO conditions, the period of time since [the child] has seen her father, and the response she allegedly had following the facetime interaction in April 2023. It was not deemed in the best interest of [the child] to observe her with [the father] for this assessment, particularly with regard to potential risk of a traumatic response and/or psychological distress.
…
24.… The nature of [the child’s] alleged disclosure is concerning, along with [Joint Child Protection Response Program’s] substantiated risk outcome. Whilst actual harm is not substantiated, child sexualised disclosures, such as that reported by [the mother], indicate significant risk of psychological, emotional, sexual, and potential physical harm without safety planning. …
…
38. The Court may consider that a more comprehensive assessment is required, such as a Single Expert or Family Report, as well as consideration of the material from DCJ, before any considerations regarding spend time arrangements.
…
APPLICABLE LAW
…
67These were interim proceedings and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts. However, just because I am unable to determine or resolve a disputed fact and/or assertion does not mean that I ignore the allegations of risk.
68In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
69In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
…
77As stated earlier, I am required when applying the primary considerations to give greater weight to the need to protect a child from risk and harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
78I cannot ignore the allegations of risk that are raised by the evidence. Nor can I resolve the competing factual disputes, including disputes as to the reliability or otherwise of the mother, the mother’s credit, the allegations of family violence and inappropriate touching, and/or whether the mother’s allegations are designed or created for the purposes of ensuring that the child does not have a relationship with the father. I am simply unable to resolve each of these contended assertions which are matters for a final hearing. In those circumstances, I need to act cautiously.
79The allegations of inappropriate touching are exceptionally serious. As the Court Child Expert recorded:
24.… The nature of [the child’s alleged disclosure is concerning, along with [Joint Child Protection Response Program’s] substantiated risk outcome. Whilst actual harm is not substantiated, child sexualised disclosures, such as that reported by [the mother], indicate significant risk of psychological, emotional, sexual, and potential physical harm …
80I accept this evidence. Within the confines of this hearing, it is sufficient to establish a possibility of a risk of harm. I am satisfied there exists the possibility of a risk if the father’s orders are made, given he sought a progression of time to an unsupervised regime. As the authorities make clear, possibilities are a legitimate basis for a finding of risk.
81The issue becomes whether there is a risk to the child in the event of there being supervised time. I do not know what the outcome of a supervised time arrangement between the child and the father might be. One must always be cautious in interim proceedings about unintended consequences. It is for good reason that the authorities direct judges to act with caution. I am concerned that there is a degree of risk even with supervised time.
82The Court Child Expert determined that it was not in the child’s best interests to observe the child with her father because of the “potential risk of a traumatic response and/or psychological distress” (Child Impact Report, paragraph 16). Her conclusion was based upon the current AVO conditions, the period time since the child has seen her father and the child’s alleged response to the FaceTime interaction with the Father in April 2023. It is not clear to me how the current AVO conditions or the effluxion of time since the child has seen her father could give rise to the Court Child Expert’s concern. However, she also based her opinion upon the child’s alleged response to the FaceTime interaction.
83The mother described the child’s response following the FaceTime call as distressed and agitated, and it would appear that the child was unsettled for some time after.
84I further note that the Court Child Expert identified that the Court should await the outcome of more expert evidence before “any consideration regarding spend time arrangements [is] to recommence” (Child Impact Report, paragraph 38).
85I am unable to know whether or not contact between the child and the father may have the consequence identified by the Court Child Expert. However, where an expert has determined in their expert opinion that even bringing the child into contact with the father in her presence (which presumably would be a very controlled and managed environment) carried the “potential risk of a traumatic response and/or psychological distress” (Child Impact Report, paragraph 16), then an arrangement involving a supervisor must carry the same or possibly greater potential risk.
86I am simply not in a position in the absence of more comprehensive expert evidence to second guess, contradict or disregard such an opinion. I will in all likelihood, however, be better informed as to those consequences, if any, when a more fulsome expert report is released.
87In determining what is in the best interests of the child, I will now turn to the additional considerations so far as they are relevant.
88The child is of an age where her views are not a relevant consideration.
89I am satisfied that the evidence reveals that the child had a close bond with the father following her birth and that it would appear, notwithstanding the dispute between the parties, that the child has spent significant and regular time with the father. The Court Child Expert recorded that “there was no indication that [the child] has a negative idea of her father” and that the child “did not indicate any adverse emotions or responses when recalling her relationship with her Father (Child Impact Report, paragraph 28). I accept the child has a close relationship with her mother. There does not appear to be any issue that each parent has taken the opportunity to be involved in long term issues in relation to the child.
90The father invited the Court to have regard to s 60CC(3)(d) and the significant period of time that has elapsed since the father has spent time with the child. In that respect, I note that the father last spent any face to face time with the child in March of this year, being some nine months ago. The father’s counsel submitted that this is a matter of some significant concern.
91A considerable focus for the purposes of interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and (i), calling into focus the insight and capacity of the parents to place the child’s needs above their own and the attitude of the parties to the responsibilities of parenthood.
92In that respect, the Court Child Expert recorded as follows in the Child Impact Report:
34. This brief assessment reveals significant concerns for [the child’s] emotional and psychological wellbeing. The allegations regarding [the father’s] abuse of [the child] and [the mother] are serious in nature. If the allegations regarding sexual abuse of [the child], perpetrated by [the father], are found to be true, the risk of significant emotional, psychological, and sexual harm would likely be major, and lead to substantial impact on [the child’s] health and wellbeing. Allegations made by [the father] that [the mother] has fabricated sexual abuse disclosures to interfere with his relationship with [the child], is also of concern. If the allegations regarding false sexual abuse accusations made by [the mother], to interfere with the relationship between [the child] and [the father], are found to be true, the risk of significant emotional and psychological harm may be profoundly detrimental for [the child], in her ability to enjoy a relationship with her father.
35. If [the mother] is engaging in controlling [the child’s] dietary intake against the recommended nutritional requirements for a developing child, this may present a significant risk of [the child] developing an unhealthy association with food and body image. Such experiences and associations can lead to health concerns including body dysmorphia and eating disorders. The Court may consider ordering a paediatric health assessment of [the child to ensure that she is on track physically and nutritionally.
93Within the context of these proceedings, I am simply unable to resolve the competing assertions and otherwise note that I must act cautiously.
94In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
95I am satisfied on the material before me that the primary consideration of the need to protect the child from a risk of harm is the most pressing and prevailing consideration and overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3).
96This is a case all about risk. There is an extremely poor coparenting relationship, a high level of distrust, and allegations of family violence and inappropriate touching.
97Consistent with the obligation to act cautiously for the above reasons, I decline at this stage to make orders for the child to spend any time with the father.
APPLICABLE LAW
To warrant the court reconsidering the parenting arrangements for the child the father needs to establish that there has been a change of circumstance.
It has been clearly articulated in numerous authorities of this court that the court should not "lightly entertain an application to reverse" an earlier order unless it is satisfied that there are changed circumstances in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing which would justify the reversal (see Rice & Asplund (1979) FLC 90-725 ("Rice and Asplund") at 78,095).
The foundation for such assertion rests on the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest (see Langmeil & Grange [2013] FamCAFC 31).
If the Court is not satisfied there has been such a change of circumstances, then a dismissal of the application, in so far as it seeks such a change, would be a dismissal on Rice and Asplund grounds. Such a determination is not a parenting order. Accordingly, it does not involve a consideration of, or adoption of, the same pathway as that needed in relation to a parenting order.
In Carriel & Lendrum (2015) FLC 93-640, the Full Court observed:
56.…where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
While in Trewitt & Brock [2021] FedCFamC1A 9, the Full Court observed:
29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the Father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.
30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.
As to the issue of change of circumstance the father points to the withdrawal by the police of the AVO which had been made preventing the father having contact with the child. In that respect his affidavit records:
AVO Application and it being withdrawn
11.[In early] 2023, a Provisional Apprehended Domestic Violence Order (AVO) was taken out by the NSW Police naming me as the defendant and [H] as the person in need of protection. The terms of the Provisional AVO prevented me from having any contact with [H].
12.[In early] 2023, an Interim AVO was made in the [Suburb HH] Local Court when the matter was listed that varied the terms from that detailed in the Provisional AVO by permitting contact with [H] in circumstances where the contact is through a lawyer, through [Ms Letty] or otherwise as ordered by the Federal Circuit and Family Court of Australia. These changes were made with the consent of the Police who obtained [Ms Letty's] consent, which was given.
…
14.Copies of the Provisional AVO and Interim AVO have been filed in the proceedings previously.
15.I deny the allegations made against me and I have sought to defend the AVO proceedings. I filed a statement in the AVO proceedings, and I also caused my criminal lawyers to submit representations to the NSW Police requesting that they withdraw the application. Annexed hereto and marked 'A' is a copy of the representations submitted on my behalf to the NSW Police.
16.The representations were accepted by the NSW Police and the AVO proceedings were listed before the Local Court [in early] 2024 and the Police withdrew the application and the Application for Apprehended Domestic Violence Order was dismissed by a Magistrate.
17.The Order made in the Local Court dismissing the ADVO application made in the Local Court [in early] 2024 is Annexed hereto and marked 'B'.
…
24.An Interim Hearing occurred in this matter [in late] 2023 before the Honourable Justice Schonell. Judgment and Orders were issued on 15 December 2023 by the Honourable Justice Schonell, in which Orders were made that [H] live with her Mother and that I spend no time with her and otherwise, information Orders were made.
25.At the time the prior application was determined the ADVO proceedings had not been withdrawn or dismissed or determined. At that point in time, they were pending and listed for a final hearing to occur in [mid] 2024.
The father's Senior Counsel submits that there was a very thorough police investigation that resulted in the withdrawal of the AVO. Reliance is placed on Exhibit 2 which is a document produced by the New South Wales Police. It relevantly includes the following paragraphs:
During the Forensic Child Interview with the PINOP, was unable to freely disclose the allegations, resulting in Investigators asking direct questions, due to this and the lack of any other independent corroborating evidence, the decision not to proceed by way of a criminal Investigation was made.
and further:
The matter has now been investigated and there is insufficient evidence to determine what, if any, offences have been committed by the Defendant. In consultation with [Mr JJ] and [Mr KK], Police believe there are no longer grounds for the ADVO to remain in place.
The father's senior counsel emphasised that one of the reasons for the conclusion of the Court Child Expert in determining not to interview the child was the existence of the AVO. It's subsequent withdrawal, he submits, undermines the weight to be placed on her opinions. He also submits that the child must be wondering why she is not seeing her father and that resumption of time on a supervised basis is consistent with the child's best interests. The father's Senior Counsel also submits that a resumption of supervised time would provide some important evidence to the Single Expert through the supervision reports of the father/child relationship as well as permitting the child to engage with her sibling X.
In relation to the mother’s orders pursuant to s 68B, the father’s Senior Counsel submits that there is not a scintilla of evidence to warrant the making of them. In relation to any concerns that the mother may have, which it is submitted are not warranted, the father gives an undertaking to the court not to apply for his firearms to be returned or apply for a gun licence without first giving 28 days' notice.
I am not satisfied that the events the father relies upon are sufficient to amount to a change of circumstance warranting a reconsideration of the current orders. The withdrawal by the police of the AVO does not change the conclusion reached following the earlier risk assessment undertaken by me. The decision of the police not to prefer charges or take the matter further involved considerations entirely different to those that I must have regard to.
The issue of risk raised in the Child Impact Report remains unresolved. The risk assessment I undertook did not rest upon the existence or otherwise of the AVO. I made it clear that I was not in a position to second-guess or contradict the opinion of the Court Child Expert but would, upon release of the proposed expert report, be better informed. At the time of those reasons the report was expected sometime after February of this year. As it is, the interviews for the report have still not occurred. The mother’s affidavit and her King's Counsel's submissions would suggest that the delay rests primarily at the feet of the father. I am not able to resolve that issue.
Nor am I satisfied that the evidence from a supervisor of the father's interaction with the child is some new matter. There seems no issue that the child and father had a good relationship. The risk assessment determination at this stage is that there should be no change to the existing orders. To do otherwise on the basis of some perceived benefit to the expert assessment or to permit a relationship with a sibling is to put the proverbial cart before the horse.
Where I am not satisfied there has been a change of circumstance it follows that the Application in a Proceeding of the father will be dismissed.
The mother seeks injunctive orders pursuant to s 68B for herself and the child. Some of the orders are internally inconsistent, thus if an order is made in the terms of paragraph 2.1 as proposed by the mother that the father be restrained from contacting or coming into communication with the child then it seems that order 2.4 in the terms of the father being restrained from making critical or derogatory comments about the mother in the presence of or in the hearing of the child would seem otiose.
The mother has not had the benefit of an injunction for her protection at any time. Her King's Counsel submits that the existence of the AVO in favour of the child provided a measure of protection as the father was under the spotlight of the AVO and, as I understand the submission, it acted as a deterrent because if made it would have prevented him re-obtaining his gun licence. She also submits that the mother is fearful of the father and his access to guns. In that respect reference was made to paragraphs 43 and 44 of the mother’s affidavit filed 22 April 2024. I further note, without reaching a finding or conclusion, that the Court Child Expert recorded in her report at paragraph 25 the following:
25.… Whilst there were no incidents involving direct threats with weapons by [Mr Danniell] disclosed by [Ms Letty], it is worth noting that in conjunction with people who use patterns of family violence and coercive control, those who also possess weapons, pose a significantly higher risk of dangerousness.
I am not satisfied that the mother has made a case to warrant an injunction in her favour pursuant to s 68B. I declined to make one in December in circumstances where there was in existence the AVO for the child. I am not satisfied that there has been a change of circumstance to warrant reconsideration of that issue. However, in light of the matters raised by the mother’s King's counsel and the father’s undertaking to the court, I will grant liberty to the mother to apply on three days' notice if the father gives notice in accordance with his undertaking.
In relation to the injunction sought for the child, the mother's King's Counsel submits that there is a correlation between the child's sexualised behaviour and seeing her father. In that respect reliance is placed on the mother’s evidence in her affidavit filed 1 November 2023 at paragraphs 53, 54, 58, 59 and 61 and paragraph 70 of her affidavit filed 22 April 2024. I am simply unable to determine the reasons for this behaviour in the absence of expert evidence and therefore do not draw the necessary parallel or link as proposed by King's Counsel for the mother.
However, the Court Child Expert was of the view that it was not in the child's best interests to observe the child with the father having regard to the potential risk of a traumatic and/or psychological distress. As there will be a no time order, it seems that there would be no basis for the father to contact or communicate with the child. However, to avoid even the possibility of a risk of trauma or psychological distress, I am satisfied that the child's welfare warrants an injunction restraining the father contacting the child. The mother's King's Counsel agreed that the injunction should not prevent the Single Expert seeing the child with the father and so I will make an order providing for that eventuality. I will, consistent with my earlier reasons, grant a general liberty to apply on three days' notice upon release of the Single Expert Report.
I will make the following orders.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Ex Tempore Judgment of the Honourable Justice Schonell. Associate:
Dated: 6 May 2024
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