Dawkins & Penton
[2021] FedCFamC1A 74
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dawkins & Penton [2021] FedCFamC1A 74
Appeal from: Penton & Dawkins [2021] FCCA 1502 Appeal number(s): EAA 84 of 2021 File number(s): CAC 62 of 2018 Judgment of: ALDRIDGE J Date of judgment: 1 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – INJUNCTION – Appeal against orders restraining the father from communicating or approaching the child – Where the grounds of appeal do not identify any error on part of the primary judge – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 68B, 114
Statute of Westminster Adoption Act (1942) (Cth)
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Number of paragraphs: 39 Date of hearing: 28 October 2021 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Coleman SC Solicitor for the Respondent: Australian Family Lawyers The Independent Children’s Lawyer: No appearance ORDERS
EAA 84 of 2021
CAC 62 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
BETWEEN: MR DAWKINS
Appellant
AND: MS PENTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
1 December 2021
THE COURT ORDERS THAT:
1.The appeal 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawkins & Penton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Dawkins (“the father”) and Ms Penton (“the mother”) have a child who was born in 2015 (“the child”). On 2 July 2021, a judge of the Federal Circuit Court of Australia (as it was then known) ordered that the child live with the mother who is to have sole parental responsibility for her.
Included in the orders of 2 July 2021 were the following:
4.The child shall have no time or communication with her father unless otherwise agreed in writing by the mother.
…
8.Pursuant to section 68B of the Family Law Act 1975, unless otherwise agreed in writing by the mother, the father is hereby restrained from:
(a) approaching within 100 metres of the child;
(b) approaching within 100 metres of the mother;
(c) approaching within 100 metres of the mother’s residence;
(d) approaching within 100 metres of the mother’s place of employment, except to obtain urgent medical attention or for a planned admission to hospital and, in that circumstance, the father shall advise the mother’s solicitors in writing with as much notice as possible prior to the admission;
(e) approaching within 100 metres of the child’s school or any venue at which the child is engaged in extra-curricular activities;
(f) removing the child from the care of the mother or from her school or any venue at which she is engaged in extra-curricular activities;
(g) communicating or attempting to communicate with the mother or the child except through the mother’s legal representatives;
(h) harassing, molesting or stalking the mother or the child; and
(i) causing or threatening to cause bodily harm to the mother or the child.
9. Pursuant to section 68C of the Family Law Act 1975, there being in force an injunction for the personal protection of the mother and the child, if a police officer believes on reasonable grounds that the father has breached the injunction by:
(a) causing or threatening to cause bodily harm to the mother or the child; and/or
(b) harassing, molesting or stalking the mother and/or the child;
the police officer may arrest the father without a warrant.
AND THE COURT NOTES the undertaking given by the father on 5 February 2020 that he will not:
(i) attempt to discover the place of residence of the mother and child;
(ii) attempt to discover where the mother works; or
(iii) attempt to discover where the child attends school.
The father has appealed against Orders 4 and 8.
These orders came about as a consequence of serious findings made by the primary judge as to the behaviour of the father.
The parties separated in January 2018. On 1 March 2018 orders were made for the child to live with the mother and spend time with the father on a relatively limited basis which was to be supervised by E Contact Centre.
On 18 March 2018, during a supervised visit, the father removed the child from the contact centre telling staff he was taking the child to the police because she had been inappropriately touched by her grandfather. The father did not take the child to the police. Instead the father took the child to City Z, first to a vacant house belonging to the paternal grandmother, then to the City Z police station and then to a friend’s home. In a series of text messages with a friend of the mother, the father demanded that the mother call him.
The child was removed from the father’s care on 19 March 2018 pursuant to a recovery order which had been issued that morning.
The primary judge found that the father’s actions demonstrated “determination on his part to avoid detection for as long as possible” (at [85]) as opposed to a genuine desire to protect the child.
On 11 April 2019, a tracking device was found within one of the child’s toys. The mother contacted the police who, after finding two tracking applications on the father’s phone, asked the mother to attend the police station. The mother did so and on inspection a further tracking device was found on the mother’s car.
The father pleaded guilty to charges of stalking and breaching a family violence order. On 11 October 2019 he was sentenced to 10 months and 8 months imprisonment, respectively, for those offences. The father was released on that day having had regard to the time he had been in prison on remand.
This and a number of other incidents led her Honour to conclude:
310.Throughout the proceedings the father seemed incapable of reflecting on his actions except through an extraordinarily self-centred prism. For instance, he said his motivation for putting the tracking device on the mother’s car was to help him feel closer to his daughter. The mother explained how frightened she felt knowing the father had identified her car and was able to track her movements through the device. Mr C spoke about “emotional contagion” and the risks to the child in picking up on the mother’s anxiety. The father showed no understanding of the mother needing to feel safe in order to provide a stable and secure emotional environment for the child. On the contrary, he was scathing of the mother in his conversations while in prison and blamed her for his incarceration.
…
336.Senior counsel for the father argued that, despite the evidence of the mother that she experiences fear and anxiety as a consequence of the father’s conduct, and despite the evidence of Dr D that stalking, by its very nature, causes psychological injury regardless of how robust the target of the stalking is, there is no evidence to suggest the mother requires regular professional support to manage any fear or anxiety and, importantly, there is no evidence that any such fear or anxiety has had a detrimental effect on her parenting capacity or on the child. She submitted that, in order to have an impact on the Court’s determination, there must be a direct link between the psychological injury caused by the stalking and some detriment to [the child]. I reject that submission. Although the best interests of the child are the paramount consideration, they are not the only consideration. There is no reason why a parent should have to accept ongoing family violence in order to promote a relationship between the child and the other parent, even if they have such highly developed parenting skills that they are able to shield the child from all or most of the adverse impacts of that behaviour. In any event, I am satisfied that the risks to the psychological wellbeing of the child either directly from the father’s inappropriate comments about her mother or through the effect of “emotional contagion” of her mother’s anxiety are real risks to which she has already been exposed. The legislation is framed in terms of risks to the child; it is not necessary to wait for actual harm to eventuate.
337.The next matter under section 60CC (3) that the Court must consider relates to any family violence order in force. A two year family violence order was made by consent and without admissions in the ACT Magistrates Court on 11 October 2019. The order prohibits the father from being on certain premises including the three hospitals at which the mother works, unless he is receiving emergency medical treatment or has been admitted to the hospital. He is restrained from coming within 100 meters of the mother and child with certain exceptions, including if he does so in accordance with a family law order. The family violence order also restrains the father from locating or attempting to locate the mother or the child. This order will expire in October 2021. I intend to make an order in similar terms as sought by the mother pursuant to section 68B of the Family Law Act for the personal protection of her and the child.
(Footnotes omitted)
THE APPEAL
The Notice of Appeal filed on 28 July 2021 contains 25 grounds but the father’s Summary of Argument filed on 28 September 2021 plainly does not deal with them. In his oral submissions, the father made it clear that the only ground of appeal he relied on was Ground 24. It is directed to Order 8 (the restraints against the father from approaching the mother and the child) and is in the following terms:
24.That the trial judge was in error in failing to consider when imposing restraints on the Appellant Father by Order 8 paragraphs (c), (d) and (e) the impact of such restraints on the day to day freedom of movement of the Appellant Father required by the Appellant Father to pursue his employment, livelihood, trade and commerce.
The father’s Summary of Argument simply states:
1.The orders have taken away my right to introduce goods, wares, and merchandise from one state to another and internationally. They have taken away my right to travel unburdened by restrictions, regulation or obstructions.
2.The orders have been an intentional and direct interference and trespass on the [father’s] Estate:
The [father’s] Estate
Secured Group/Party
Trustee for the [father’s] Estate ABN …Secured Party Registrations
1)The trustee for the [father’s] Family Super Fund ABN …
PPSR Registration …
2) [The child], ASIC … , commercial property
PPSR rego [the child] …
3) [The child], ASIC … , commercial property
PPSR rego [the child] …
4) [K] Pty Ltd ABN …
ANSIC code – …, Business Industry Code – …
PPSR rego 2…
Secured Party Sub Registrations of [K] Pty Ltd
a) https:// … .com/[K Pty Ltd],
b) https:// … .com/[the child], 2015, PPRS rego … [the child] [K Pty Ltd], Commercial Property, PPSR rego …
c) Legal Entity Identifier (LEI) [K] Pty Ltd, PPSR …
5) Testament of Will and Notice of Right. PPSR rego …
6) Copyright t-shirt design …/… PPSR rego …
7) Copyright on Education and Research Paper, PPSR rego …
8) [The child] - Registration of (live) Birth, PPSR …
9) [Suburb C] title, PPSR rego …
10) [The father], business name ABN … , ASIC trans … PPSR rego …
11) [The father], person ABN … , 2014 PPSR rego …
Secured Party Sub registrations of [the father]
a) [The father] FAMILY SUPER FUND, ASIC trans … PPSR rego …
b) [The father] Estate, ASIC trans … PPSR rego …
c) [The father], ASIC trans … PPSR rego …
d) [The child], ASIC trans … PPSR rego …
e) [F Co], 2016, ASIC trans … PPSR rego …
(As per the original) (Emphasis removed)
The list which follows paragraph 2 is of what the father said was the property which had been interfered with by the orders.
In his oral submissions the father explained that much of the background to his contentions was contained in four further documents on which he sought to rely. For ease of understanding his submissions and these reasons, those documents are appended.
Three of the documents are addressed to the Governor-General. I found each of them to be difficult to follow but it appears from them that the father asserts that he has returned to the original Commonwealth of Australia (i.e. that which existed prior to the passing of the Statute of Westminster Adoption Act (1942) (Cth)) “the Interest in the Estate created by the Record of Information of Birth and the BIRTH CERTIFICATE” (Father’s document titled “Declaration of Peace & the Gift of Reversion of Interest to the Commonwealth of Australia” dated 22 October 2021, p.9). The father then said:
I have accepted my inheritance and responsibility as steward of my life and do hereby pronounce, claim and occupy the Office of Executor for the [father’s] Estate incorporating the [child’s] estate.
(Father’s document titled “Notify Governor-General of Acceptance as Executor Autographed” dated 22 October 2021, p.1)
It is plain enough from the documents appended to these reasons that the father’s “executorship” overrules all other Commonwealth authority over him and that the father asserts that by the various gifts and declarations set out in them he has freed himself and the child from the doctrine of parens patriae including the authority of courts exercising jurisdiction under the Family Law Act1975 (Cth) (“the Act”) so that he alone has parental authority over the child.
The legal process by which the father claims to be able to do so was expanded on somewhat during the course of oral submissions.
The father said that he had notified the United Nations that the Commonwealth is no longer the trustee of his estate (Transcript 28 October 2021, p.5 lines 35–36). When asked to explain this more fully, the father replied that he and the child “have a natural born affinity with our first nation, the Commonwealth of Australia” (Transcript 28 October 2021, p.6 lines 19–20). That, he said, is not the present Commonwealth of Australia which, since 1933, has been a corporation registered at 1601 Massachusetts Avenue, Washington DC in the United States of America (Transcript 28 October 2021, p.6 lines 31–32). As the Queen is queen of that corporation and not the original Commonwealth no valid royal assent was given to the Act (Transcript 28 October 2021, p.8 lines 8–10).
I can do no more than say I do not understand the submission or the matters in which it is based and do not accept it.
The second submission was that there is nothing in the Act that “would allow any person, man, woman or entity or court the authority to stop or restrain trade in the introduction of goods and wares, merchandise from one State to another and internationally” (Transcript 28 October 2021, p.13 lines 45–47).
The first aspect of the submission is that the jurisdiction of the Federal Circuit and Family Court is that of a court of admiralty dealing with contract law. This is because:
·The initiating application is a contract, as it bears the legal names of the parties;
·That contract is beset by unconscionable conduct, undue duress and coercion because “nobody in the Federal Circuit Court and Family courts have any specialty level expertise in parental alienation” which is evidenced by the removal of the child from him (Transcript 28 October 2021, p.13 lines 14–15);
·The “entirety of the Commonwealth of Australian jurisdiction that we are dealing with, the family law courts, are working through the exclusive economic zone under the UNIDROIT treaty” (Transcript 28 October 2021, p.11 lines 34–36);
·The parties to a marriage are vessels because “the legal name represents a vessel” (Transcript 28 October 2021, p.12 line 29), therefore, admiralty and contract law apply; and
·This was because “we’re talking about vessels that have been signed over as wards of the State on the date of birth” and “have not been returned as live birth children to their parents, and then used to form a situate the trust fund which the government does use to fund a lot of its operations” (Transcript 28 October 2021, p.12 lines 34–38). Apparently, this is due to or made apparent by the issue of a birth certificate.
I am not persuaded by these submissions that the father and the child are not subject to the provisions of the Act and that he is not bound by orders made by a court exercising jurisdiction under it.
Finally, the father submits that the child is “an integral part of [his] enterprise” (Transcript 28 October 2021, p.14 line 19) which “revolves entirely around the presence of [his] child” (Transcript 28 October 2021, p.15 lines 11–12). In his Summary of Argument, the father lists what he says are his business enterprises.
I do not accept that the material before the Court establishes the premises of the above submissions. However, even if I assume that the father has done so, the submission cannot succeed.
Section 68B of the Act empowers a court having jurisdiction under the Act to issue injunctions for the personal protection of the child or a parent of a child, restraining a person from entering a residence, place of employment or education of the child or a person mentioned in s 68B(1)(B) of the Act, as it considers appropriate to the welfare of the child.
Further, in proceedings between parties to a marriage which arise out of the marital relationship, the court may grant such an injunction as it considers proper, including an injunction for the personal protection of a party (s 114 of the Act).
It is plain enough that injunctions of the kind made by her Honour in this matter could possibly have some effect on the business of the father or on contracts involving him, if that business required him to come within the prohibited distance from the mother, the child, her school and activities and their home. There is, however, nothing in these sections that prevent injunctions being made that have that effect. The sections empower the court to make orders for the protection of the child. That paramount purpose cannot be defeated merely because the collateral effect of such an order is to affect the business of or contracts held by the restrained party in some way. That would be to elevate the commercial interests of a party over the personal safety of a child and that of the person caring for the child.
Having said that, the effect of such interference is a matter which could be taken into account when deciding whether to make such an order at all or in framing its terms but it is by no means determinative. Having regard to the distances in this matter (100 metres), it seems unlikely that the orders would impose any restriction on the father to carry out his business as a construction worker.
Importantly, the father did not take me to anywhere in the proceedings before the primary judge where her Honour was asked to take this consideration into account and, as such proposition could have been the subject of evidence, it is now too late to raise the issue (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438).
However, as I understand the submissions, that was not the father’s contention. Rather, he submitted that the child was a vital part of his enterprise, which required her to be with him. He sought to categorise that enterprise as commercial in nature by reference to the list of what he described as his assets which is in his Summary of Argument and extracted above.
I do not accept that even if the businesses involved the child in some way that they were such that the operation of them was dependent upon the presence of the child. As explained, I do not accept that even if that were the case, such interests would overcome the child’s right to protection.
I am not persuaded that the father’s submissions have identified any error.
I do not propose to deal with the remaining grounds which were not the subject of submissions.
In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court of Australia said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
I have read her Honour’s reasons for judgment closely and no error is readily apparent to me.
It is to be recalled that the father has not appealed against the orders providing for the child to live with the mother or the order for sole parental responsibility. They are enough, absent any other order, to empower the mother to decide that the child should not spend any time with the father. It is the consequence of some of the father’s submissions that these orders do not bind him. He should be under no illusion that the effect of the dismissal of the appeal is that all the orders remain in place and that he cannot act other than in accordance with them.
CONCLUSION AND COSTS
The appeal will be dismissed.
No order as to costs was sought by the appellant as her lawyers, including senior counsel, acted pro bono.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 1 December 2021
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