DEGRAVES & SEARLE

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEGRAVES & SEARLE

[2013] FCCA 660

Catchwords:
FAMILY LAW – Parenting – interim hearing – injunctions and restraints sought for personal protection of mother and children.

FAMILY LAW – Practice and procedure – admissibility of evidence – hearsay – communications in family counselling.

Legislation:
Family Law Act 1975, ss.4, 4AB,10B, 10C, 10D, 10E, 13A, 13C, 60CA, 60I, 65LA, 65LB, 65N, 67ZBB, 68B, 68C, 69ZN, 69ZT, 114, 114AA

Evidence Act 1995 (Cth), ss.59, 60, 62, 76, 131, 135 136, 140

In the marriage of J (1979) FLC 90-718
Waugh and Waugh (2000) FLC 93-052

Applicant:

MS DEGRAVES

Respondent:

MR SEARLE

File Number:

WOC 892 of 2011

Judgment of:

Judge Harman

Hearing date:

7 June 2013

Date of Last Submission:

7 June 2013

Delivered at:

Parramatta

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Ms Heaton

Solicitors for the Applicant:

Claire Heaton Solicitor

Counsel for the Respondent:

Mr Ng

Solicitors for the Respondent:

Adams Partners Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Soliman as Agent

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission NSW

ORDERS

The father, Mr Searle, shall be and is hereby restrained from making any request of the children’s school or any other organisation (including medical practitioners, counselling services and the like) to provide to him the address of the mother, Ms Degraves, or the children or either of them namely, [X] born [in] 2001 and [Y] born [in] 2003, or any information from which such information might be derived.
The parties and the Independent Children’s Lawyer shall be at liberty to provide a copy of these orders to the children’s school/schools and with a request that the school/schools take all necessary steps to ensure that information that is not to be requested as a consequence of these orders is not provided if, in fact, requested.
The Application in a Case filed 23 May 2013 is otherwise dismissed.
The matter is listed for Final Hearing before Judge Harman at 10.00am on 3, 4 and 5 March 2014 and to continue until completed.
The mention date of 20 September 2013 is vacated.
In the event that either party (or the Independent Children’s Lawyer) requires the report writer for cross examination then written notice of that fact is to be given to the report writer within 21 days of today’s date and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer they shall cause the proceedings to be relisted.
Direct the parties to file and serve all Affidavit material on which they intend to rely at trial no later than close of business on 20 January 2014.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email to my Associate no later than close of business on 24 February 2014, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events;
(d)Orders sought at trial if different to those sought by any Application or Response filed and provided that minute of proposed orders shall not substantially vary the relief proposed by same or join fresh issues;
(e)A draft trial plan (preferably agreed).
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Liberty is granted to the parties and to the Independent Children’s Lawyer to restore the matter to my list with respect to compliance with the above orders and in accordance with the Federal Circuit Court practice directions regarding same.
In the event that the above liberty is utilised by a party then they are to ensure that the other party and the Independent Children’s Lawyer is advised forthwith of any listing date as well as the basis on which the relisting has been sought and the orders or directions that are to be sought by them when the matter is next before the Court.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Liberty is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

WOC 892 of 2011

MS DEGRAVES

Applicant

And

MR SEARLE

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court by way of an Application in a Case filed 23 May 2013 and listed on short notice.
The parties to the proceedings are the parents of children:
a)[X] born [in] 2001 (and thus 12 years of age); and
b)[Y] born [in] 2003 (and thus 10 years of age).
The children’s mother, Ms Degraves, is the Applicant in this interlocutory Application although the Respondent in the substantive proceedings.
The children’s father, Mr Searle, is the Respondent to the Application in a Case (and the Applicant in the substantive proceedings).

Orders sought

Ms Degraves seeks orders in the following terms:
1. That leave be granted to serve short notice of this Application.
2. That for the personal protection of the children where [X] born [in] 2001 and [Y] born [in] 2003 and/or mother Ms Degraves the father Mr Searle refrain from and hereby be restrained, injuncted and prevented from coming within one (1) kilometre of where the children live or attend school or the mother lives, and transports the children to and from school.
3. That for the personal protection of the mother Ms Degraves the father Mr Searle refrain from and hereby be restrained, injuncted and prevented from communicating with the mother or attempting to communicate with the mother nor ask someone else to communicate with the mother either directly or indirectly, nor follow nor approach the mother nor attempt to follow or approach the mother or ask someone else to approach the mother either directly or indirectly. Communicate with for the purpose of this order includes but is no limited to communications by any social media, telephone, email or text.
4. That for the personal protection of the children where [X] born [in] 2001 and [Y] born [in] 2003 the father Mr Searle refrain from and hereby be restrained, injuncted and prevented from communicating with the children [X] born [in] 2001 and [Y] born [in] 2003 or attempting to communicate with the child nor ask someone else to communicate with the child either directly or indirectly, nor follow nor approach the child nor attempt to follow or approach the child jail [sic] or ask someone else to approach the child either directly or indirectly. Communicate with for the purpose of this order includes but is no limited to communications by any social media, telephone, email or text.
5. If the father MR SEARLE fail to comply with orders 2, 3 or 4 above he may be arrested without warrant.
6. That the father pay the mother’s costs of these proceedings.
Mr Searle, by his Response (filed 7 June 2013), seeks simply that the Application in a Case be dismissed and Ms Degraves pay his costs with respect to the Application.

Material considered

I have read the material identified by each of the parties and the Independent Children’s Lawyer and comprising:
a)In the case of Ms Degraves:
i)Her Affidavit sworn or affirmed 23 May 2013 and filed the same day;
ii)Her Affidavit sworn or affirmed 20 February 2012 and filed 22 February 2012;
iii)Ms Degraves’ Response filed (in the Wollongong Registry) on 22 February 2012;
b)In the case of Mr Searle:
i)His Affidavit sworn or affirmed 5 June 2013 and filed 7 June 2013;
ii)His Initiating Application filed (in the Wollongong Registry) on 10 November 2011;
c)In the case of the Independent Children’s Lawyer I have read the Family Report prepared by Mr L (a Regulation Seven Family Consultant) and dated 13 September 2012.

History of the proceedings

These proceedings, having been commenced in the Wollongong Registry of the Court, first came before the Court on 27 February 2012. On that date a number of orders were made by consent and which provided for time to occur between the father and the children, and each of them, through the [omitted] Child’s Contact Centre.
Orders were also made on 27 February 2012 for the appointment of an Independent Children’s Lawyer and for the parties to attend upon a Family Consultant for the purpose of a Child Dispute Conference.
On 30 March 2012 Orders were made by consent in Chambers which resolved the parties’ property dispute.
On 4 May 2012, the proceedings were again before the Court (in Wollongong) and on that date a number of notations recorded as to the parties’ intention with respect to telephone communication between the eldest child, [X], and the father and the proceedings were otherwise transferred to the Parramatta Registry of the Court.
The proceedings first came before me on 11 May 2012. On that date orders were made for the preparation of a Family Report and the proceedings adjourned for further mention and directions to 19 June 2012. It was noted that during the adjourned period the parties would seek to obtain material from the [omitted] Contact Centre as to the visits which had occurred and were anticipated to occur through that Centre.
On 19 June 2012 the proceedings were, at the request of the parties, adjourned for further mention and directions. In the intervening period an order was made, of some significance as regards evidential issues that have arisen with respect to the Application in a Case, as follows:
2. Pursuant to s.13C the parties are directed, at their own cost, to forthwith and within 7 days contact Unifam for the purpose of arranging and attending the first intake assessment available to assess the suitability of the Keeping in Contact program and subject to inclusion therein, the parties shall:
a. Do all things, sign all documents, pay all fees and give all consents and authorities necessary to attend and complete same;
b. Attend on such times, dates and places as advised and until such time as the program is completed or service withdrawn; and
c. Shall ensure the child’s attendance at such times, dates and places as advised are necessary.

On 14 September 2012 an order was made in chambers releasing the Family Report to the parties.
On 2 November 2012 the proceedings came before the Court following release of the Family Report. On that date the proceedings were, again at the request of the parties, adjourned and it was noted that:
…the parties are continuing to pursue counselling through Unifam, as previously ordered, and desire time to enable that counselling to occur as was recommended in the Family Report.
The matter then came before the Court on 8 March 2013 on which date it was noted that:
…the therapeutic process is continuing and the parties are desirous of pursuing that course to its conclusion.
The proceedings were thus further adjourned for a period of six months (to 20 September 2013).
It would appear that the optimism and mutual commitment of the parties to resolve the matter through therapeutic processes has now been dashed by subsequent events which are dealt with in the evidence filed by the parties with respect to the Application in a Case.

Evidential issues

Before turning to the merits of the Application in a Case and relief sought therein, it is necessary for me to deal with an objection made to certain portions of Ms Degraves’ material and, in particular, paragraphs 9 and 11 of her Affidavit 23May 2013 which paragraphs provide:
9. On 10 April 20113 [sic] after attending about 6 appointments with Unifam I received a telephone call from Ms C from Unifam where she said words to the effect: - “In a session with me [Mr Searle] made several statements that could be construed as a threat against your life.”
...
11. On 17 April 2013 I received a telephone call from Ms C from Unifam where she said words to the effect: “The Keeping in Contact Program is now finished because of what [Mr Searle] did the other day”.
Objection is taken to the above evidence by the attorneys for the father and on a number of bases including:
a)The contents of the paragraphs, to the extent that they relate conversations between Ms Degraves and a worker from Unifam, is hearsay;
b)The evidence the subject of the paragraph is inadmissible by virtue of section 10E of the Family Law Act.
Counsel for Ms Degraves presses the two paragraphs the subject of objection. It is submitted by Counsel for Ms Degraves that:
a)If hearsay, the paragraphs are admissible by reference to section 69ZT(1); and
b)Section 10E would not have the effect of rendering the communications inadmissible as:
i)The statements were not made during family counselling and thus are not captured by the section; and/or
ii)Section 10E is not relevant to the statements, they having occurred in the context of a post separation parenting program pursuant to section 65LA rather than family counselling pursuant to Part II Division 2; and/or
iii)The material should be admitted in the Court’s discretion.

Principles for the conduct of parenting proceedings

The Court is guided by the principles set out in section 69ZN they providing:
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
In the context of this determination and, in particular, the determination of the objection raised the principles would appear to have limited utility.
The third principle provides the most direct guidance and by enjoining the Court to ensure the proceedings are conducted in a way that will safeguard children or parties from family violence. However, the determination of the evidential objection is, to a large extent, separate and distinct from the conduct of the proceedings simplicita. Further, the principles (and in particular principle 3) cannot override or do other than speak to and lend support to any particular interpretation or application of the substantive provisions of the legislation.
Thus, whilst I have been referred to the principles (and a number of other matters which I will touch upon) as relevant to the determination, I am not satisfied that they have any real application or, to the extent they might, that they offer any real assistance in determining the objection.

Hearsay

Section 69ZT(1) provides, inter alia, that Parts 3.2 to 3.8 inclusive of the Evidence Act1995 (being those which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character) do not apply in child related proceedings.
The above is subject, however, to two caveats being:
a)By sub-section (2):
The court may give such weight (if any) [emphasis added] as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
b)By sub-section (3):
…the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
Section 59(1) of the Evidence Act provides that:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Section 60(1) of the Evidence Act provides an exception to the hearsay rule in that:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
Section 62 provides a further exception to the hearsay rule based on “first-hand hearsay”.
It is asserted by Counsel for Ms Degraves that as a consequence of section 69ZT(1) and the above provisions of the Evidence Act that the evidence given by Ms Degraves (as to the comments made to her by Ms C from Unifam) would not be excluded. Further, it is suggested by Counsel for Ms Degraves that the statements:
a)Whilst clearly hearsay, are permitted by section 69ZT(1)(c); and,
b)Are, in any event, first-hand hearsay and should thus be admitted and afforded and accorded weight.
In the event that the material were admitted as a consequence of the above provisions and as asserted by Counsel for Ms Degraves, I am satisfied that the weight that could be attached to them would be minimal and particularly noting that:
a)The first of the statements involves a construction, interpretation or opinion. With respect to same I note that section 76(1) of the Evidence Act provides:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
The above section is subject to the various exceptions thereto regarding expert evidence.
The above is not intended to suggest that a worker from Unifam (whose specific qualifications and connection to these parties through the provision of service is not made clear through the material filed) lacks the necessary qualification or experience to offer opinion with respect to issues of family violence. It is well known that workers within such services are required (both for the provision of family counselling and family dispute resolution) to undertake specific training to allow and permit them to appropriately screen for family violence. However, a broad assumption would be required to permit evidence of construction, interpretation or opinion.
b)The most that could be made of the provision is that the statements made by Ms C, whilst not proving any fact by reference to Mr Searle, have created a state of mind for Ms Degraves upon which she now acts.
c)The probative value of the evidence, beyond the motivation for Ms Degraves to now hold or express fears or concerns or to act upon them (through commencing these proceedings), is marginal at best.
d)The form of the paragraphs are such that I would have some real difficulty and concern in placing any probative weight upon them other than for the above purpose (that is, imputing or suggesting a motive to Ms Degraves for acting as she has in commencing proceedings seeking injunctions).
e)On the above bases, I would not be satisfied that the evidence would be of any real assistance to the issues in dispute and thus, even if it were admitted, I would place so little weight upon the evidence that to admit it, whilst it could neither prejudice the position of Mr Searle or greatly assist a determination of issues in dispute, would be problematic and, in all probability call for its discretionary exclusion or limitation on its use pursuant to section 135 and/or section 136 of the Evidence Act.

Without seeking to invoke section 69ZT(3) and thus determining to apply those portions of the Evidence Act which would exclude the admission of the evidence as hearsay, I note that section 140 of the Evidence Act would have some relevance and application to the issue.
The evidence is sought to be relied upon by Ms Degraves with a view to establishing a threat against her life. In those circumstances I am satisfied that whilst the civil standard of proof (on the balance of probabilities) applies I must, as the section provides, take into account:
a)The nature of the cause of action or defence;
b)The nature of the subject matter of the proceedings; and
c)The gravity of the matters alleged.
In these proceedings, Ms Degraves seeks extensive injunctive relief and which would have the effect of precluding Mr Searle from engaging in certain actions under threat of arrest. Those actions include contacting the children or either of them by any means.
In the above circumstances, I would require that any evidence admitted be of such probative value as to warrants its admission notwithstanding that it would otherwise offend provisions of the Evidence Act or, if it is to be admitted pursuant to section 69ZT, that it be of such substance and probative value as to compel its admission.
The evidence referred to is, in essence, an interpretation of comments suggested to have been made by Mr Searle which comments are not otherwise before the Court. The comments are denied by Mr Searle. The person to whom the comments are made is a mandatory notifier and there is no evidence that a notification has been made.
Thus the only evidence that is, in fact, led by Ms Degraves is the subjective interpretation by another person of a comment made by

Mr Searle (the specific terms of which are not known) together with evidence as to action taken by that person (termination of service) based upon the suggested comments.
Ultimately, I am satisfied that I need not determine the issue as I am not satisfied that the material can properly be before the Court and for more compelling reasons. However, if the issue required interpretation by me, I would not be satisfied that the evidence should be admitted and could properly be excluded by reference to sections 135 and/or 136 of the Evidence Act.
Particularly by reference to section 135, I note that:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
I am satisfied that the prejudice that would be faced by Mr Searle in seeking to answer and respond to the two disputed paragraphs (which he denies in their totality in any event at least as regards any basis for the opinion or interpretation asserted or the decision made based upon said interpretation) would outweigh the probative value of the evidence and any safe reliance upon it.

Exclusion by operation of section 10E

Counsel for Mr Searle urges that the two identified paragraphs are inadmissible by reference to section 10E which provides:
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
Counsel for Mr Searle urges that the information related by the Unifam employee (or at least their interpretation thereof) has been ascertained by the employee as a family counsellor or has become known to the employee as a consequence of family counselling. Thus, Counsel for Mr Searle urges that whilst it may not be inappropriate for the employee to convey information to Ms Degraves (by reference to section 10D) that whether properly communicated or not, the contents of the communication cannot be admissible.
Counsel for Ms Degraves urges that such an interpretation would be inconsistent with common sense and would create a circumstance wherein information could be related by a family counsellor to a party affected by the information, but the party then precluded from placing that evidence before the Court.
The Independent Children’s Lawyer, who broadly supports the relief sought by Ms Degraves, indicates that on the basis of information available to them from the family counselling service (and the Independent Children’s Lawyer does not seek to put into issue that Unifam has provided family counselling services) that they hold sufficient concern to support the relief sought.
To attract the prohibition against admission provided by section 10E the Court must be satisfied that the representation constitutes evidence of anything said or an admission made by or in the company of a family counsellor conducting family counselling (or a person to whom the family counsellor has made a referral). Thus I must be satisfied that:
a)Something was said;
b)To a family counsellor (see section 10C);
c)Conducting family counselling (see section 10B) at the time that the thing said was said.
It is suggested by Counsel for Ms Degraves that Ms C, even if the above criteria were met as regards communication between Mr Searle and Ms C, was not “conducting family counselling” when she spoke to Ms Degraves and thus the communication to Ms Degraves by Ms C is not caught by section 10E. However, I am satisfied that the test must be applied to and at the time of the suggested “saying” by Mr Searle.
By reference to the above and the argument of Counsel for

Ms Degraves (that the statements suggested of Mr Searle have not been made during family counselling but during a post separation parenting program) makes of importance the definition of each of those provisions.
Before turning to those definitions it is also important to note that the parties have participated with Unifam as a consequence of an order made by me pursuant to section 13C.
Section 13C is contained within neither Part II nor Part VII of the Act (which respectively contain sections 10B to 10E regarding “Family Counselling” and section 65LA dealing with “Post Separation Parenting Programs” respectively) but within Part IIIB.
Section 13C provides (notes omitted):
(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
(2) The court may suggest a particular purpose for the attendance or participation.
(3) The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
(4) The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child's interests under an order made under section 68L.
The order made by me does not seek to specify whether the parties are referred for “family counselling” or for “…an appropriate course, program or other service”.
It is to be noted that the order was made following the release of the Family Report and with the consent of the parties. To that extent, the relevant portion of the Family Report which addresses the issue is paragraph 37. It provides (to the extent relevant):
…Therefore, before final orders are made, Mr Searle might be ordered to participate in counselling [emphasis added], provided by Relationships Australia, Centacare or Unifam. It is understood that Mr Searle is presently awaiting a place in the Unifam Parenting After Separation Program. This assessment indicates that [X] might also be assessed for inclusion in an appropriate Unifam program following representations by the Independent Children’s Lawyer.
The terminology used within the Family Report is such as to potentially support the section 13C order having been made to provide for either family counselling or a post separation parenting program (if one were to construe “post separation parenting program” in a different assemblage.
Post separation parenting programs are defined in section 4 of the legislation in the following terms:
"post-separation parenting program" means a program:
(a) that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and
(b) that consists of lectures, discussions (including group discussions) or other activities; and
(c) that is provided by an organisation that meets the conditions in section 65LB.
It is perhaps of some real relevance and significance, as has been submitted by Counsel for Ms Degraves, that no parenting order, at least so far as an order providing for time or communication between the children and their father, has been made at any time. Thus no order of the Court has created “parenting responsibilities”. However, that then begs the question whether parenting responsibilities arise only upon the making of an order under the Act or whether such “responsibilities” arise from the existence of a parenting relationship.
The definition requires that the organisation meet the requirements of section 65LB which in turn provides:
(1) An organisation meets the conditions in this section if:
(a) it is a recipient organisation (see subsection (2)); or
(b) there is a recipient organisation in relation to the organisation (see subsection (3)).
(2) An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post-separation parenting programs.
(3) An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if:
(a) both:
(i) the other organisation is a member of the organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation's members may provide services that include post-separation parenting programs; or
(b) both:
(i) the organisation acts on behalf of a group of organisations that includes the other organisation; and
(ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post-separation parenting programs.
(4) The Minister may, in writing, designate for the purposes of this section:
(a) a program; or
(b) part of a program;
administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post-separation parenting programs available.
(5) An instrument under this section is not a legislative instrument.
The parties and the Independent Children’s Lawyer have not specifically addressed as to whether the specific program into which the parties have been ordered (the “Keeping Contact program”) or the organisation providing that program meet the criteria of section 65LB. In the absence of any submission to the contrary, I am prepared to accept, for present purposes, that both Unifam and the program delivered to this family (the “Keeping Contact program”) are FaHCSIA funded and thus designated programs.
The definition of family counselling is to be found in section 10B and as follows:
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children.
Fundamental to the definition of family counselling is the requirement that the service (or counselling) be provided by a family counsellor.
Family counsellor is defined by section 10C as:
(1) A family counsellor is:
(a) a person who is accredited as a family counsellor under the Accreditation Rules; or
(b) a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or
(c) a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or
(d) a person who is authorised to act under section 93D of the Federal Circuit Court of Australia Act 1999 , or engaged under subsection 115(1A) of that Act, as a family counsellor; or
(e) a person who is authorised by a Family Court of a State to act as a family counsellor.
(2) The Minister must publish, at least annually, a list of organisations designated for the purposes of paragraph (b) of the definition of family counsellor .
(3) An instrument under this section is not a legislative instrument.
Again, and whilst no specific submission is put by either party or the Independent Children’s Lawyer, I am satisfied that the person who has delivered services to the parties (Ms C) whilst attending the Unifam Keeping Contact program is a “family counsellor”. There is nothing to indicate whether the family counsellor who has delivered services to the parties is the person referred to in each of the disputed paragraphs (Ms C). However, I am satisfied that the suggested admissions alluded to in the subject paragraphs has been made during sessions with a family counsellor and thus would be “Evidence of anything said, or any admission made, by or in the company of a family counsellor conducting family counselling” (see section10E(1)). Even if Ms C were not the family counsellor providing family counselling or a family counsellor at all, the information may have been disclosed to Ms C by the family counsellor who had, in fact, been conducted the family counselling.
A clear distinction is drawn by Counsel for Ms Degraves between family counselling and a post separation parenting program.
As conceded by Counsel for Mr Searle, the inadmissibility provisions of section 10E apply only to “family counselling”. Thus it becomes important to consider whether family counselling and post separation parenting programs are mutually exclusive concepts or whether one can include and incorporate the other.
Whilst post separation parenting programs are subject to specific definition in sections 4 and 65LB cumulatively, I am satisfied that such definition does not exclude the possibility that a post separation parenting program could also fall within the definition of family counselling (section 10B). Indeed, I am satisfied that, in this case, the two are identical. The legislation does not, other than by using two separate and different phrases, seek to exclude one from the other or from meeting both definitions simultaneously.
It is submitted by Counsel for Mr Searle that as the participation of the parties in the Keeping Contact program has arisen from a section 13C order that this must indicate that the process in which the parties have been engaged is “family counselling”. However, section 13C is:
a)As observed above, contained in a different Part of the Act to both family counselling (Part II) and section 65LA (Part VII); and
b)Sufficiently broad to incorporate a referral to either service (assuming that they are not identical as I am satisfied they are for present purposes).
Overall I am satisfied that it is irrelevant whether the order made pursuant to section 13C specifically identifies whether the parties are attending family counselling or a post separation parenting program.
The fact that the order refers to the parties attending a “program” does not, to my mind, establish that the parties are thus attending something separate from and distinct to family counselling. To that end, I am satisfied that the delivery of the service and the order to attend same is purposive. The purpose is to assist the parties deal with personal and interpersonal issues relating to the care of their children and thus rendering the service (or program) inclusively within the definition of family counselling contained within section 10B namely:
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children.
The material provided to the Court by Unifam (and readily available from Unifam’s website) describes the Keeping Contact program in the following terms:
The Keeping Contact – Parenting Orders Program works specifically with parents who are experiencing difficulty making their Court Orders and parenting arrangements work effectively for their children.
The program aims to support and strengthen safe and respectful relationships between parents and children following separation and divorce. The aim is to help children avoid the pain and distress of ongoing conflict after separation.
Our consultants assist parents to express their needs and concerns, address differences and focus on better relationships for their children's sake. Children will have the opportunity to talk with an independent child specialist who will inform parents of their needs and concerns.
The court may encourage or order parents to attend the program.
Discussions in the Keeping Contact – Parenting Orders Program are confidential except in certain circumstances where this is a safety concern.
There is nothing within the description of the program offered by Unifam which would suggest that the “program” is other than family counselling.
Keeping Contact is also clearly a post separation parenting program. However, as already indicated, I am satisfied that the two terms are not mutually exclusive nor are they terms of art. They are terms which are intended to describe processes that provide assistance to parents and/or children.
From the description by Unifam of their program, clearly the “Keeping Contact program” is:
… a process…which…helps one or more persons to deal with personal and interpersonal issues in relation to marriage; or one or more persons (including children) who are affected, or likely to be affected, by separation … to deal with either… personal and interpersonal issues [or] issues relating to the care of children (see s.10B).

Based on the above, I am thus satisfied that:
a)The Keeping Contact program is both a post separation parenting program and family counselling within the definition of sections 65LA and 10B;
b)The Keeping Contact program involves the parties consulting and conferring with and being assisted by a family counsellor (based upon the deliverer of the service being authorised to act on behalf of Unifam and Unifam being an organisation designated by the Minister for the purpose of family counselling (see section 10C(1)(b));
c)That any comment made by Mr Searle to the family counsellor with whom he was engaged in the Keeping Contact program is thus “Evidence of anything said, or any admission made, by or in the company of a family counsellor conducting family counselling” (see section 10E); and
d)By reference to the above section is thus inadmissible.
Exceptions to the inadmissibility of communications in family counselling are set out in sub-section (2). However, they are limited to admissions by an adult of abuse or risk of abuse or a disclosure of abuse made by a child.
The contents of paragraphs 9 and 11 (and most importantly paragraph 9) do not disclose an admission of abuse (or purported admission of abuse) by Mr Searle.
Abuse is defined in section 4 of the legislation in the following terms:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Even if one were to accept that a statement was directly made by
Mr Searle, to the family counsellor, in the nature of a threat towards Ms Degraves (and paragraph 9 does not contain such statement) I am not satisfied that this would fall within the definition of abuse or risk of abuse as defined in section 4. That is not to suggest that any assault or family violence perpetrated by Mr Searle upon Ms Degraves would not in all probability cause the children the subject of these proceedings to “suffer serious psychological harm” as a consequence of exposure to such family violence.
On the above basis a risk of abuse may be established if a clear threat were made by one parent with respect to the life of the other (as the carrying out of that threat would likely cause serious psychological harm to the child if the child were so exposed thereto and adopting the broad interpretation of “exposure” implied and inferred by the definition of family violence in section 4AB). However, the paragraphs sought to be relied upon by Ms Degraves do not contain evidence of any specific statement by Mr Searle but purely a construction or interpretation of a statement by Mr Searle.
Thus I am not satisfied that the exception contained within section 10E(2) as to a risk of abuse could be made out even if one adopted such a broad interpretation of the term “abuse”.
The above being so I am satisfied that section 10E would exclude as inadmissible the contents of paragraphs 9 and 11 to the extent that those paragraphs purport to provide reportage of a Unifam worker involved in the provision of family counselling services.
The fact of the telephone communication by such employee with

Ms Degraves is admissible and thus only those portions of the paragraphs wherein material is suggested to be quoted of the employee would be inadmissible.
None of the above is nor should be taken to suggest any wrongdoing on the part of any employee of Unifam.
Section 10D of the Family Law Act is in the following terms:
Confidentiality of communications in family counselling
(1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances [emphasis added].
(7) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(8) In this section:
"communication" includes admission.
Clearly, that which is suggested to be related by the Unifam employee to Ms Degraves would fall within section 10D(4) and being a permissible disclosure both:
a)Preventing or lessening a serious and imminent threat to the life or health of a person; and
b)Communicating the termination or withdrawal of services by the agency and the reasons for same.
It is submitted by Counsel for Ms Degraves that it would be illogical to allow disclosure by a family counsellor to a party but not then allow that party to give evidence of the disclosure in proceedings. That circumstance is, however, addressed by section 10D(6) and the note to same which provides that evidence that is inadmissible because of section 10E is not made admissible merely because its disclosure is authorised or permitted by section 10D.
Counsel for Ms Degraves has also asserted that admission of the material should be upheld (irrespective of any other provision of the Family Law Act), on public policy grounds and particularly by reference to:
a)The need to ensure the protection of litigants (see for example section 67ZBB) and the need for the Court to thus receive evidence that would allow the discharge of obligations created by such provisions; and
b)By reference to the Court’s “Best Practice Principles” with respect to family violence.
Whilst clearly issues of family violence are fundamental to all which the Court does in parenting proceedings, I am not satisfied that any public policy ground exists or arises from the “Best Practice Principles” as would allow the Court to disregard the clear and expressed legislative mandate provided by section 10E. Further, the terms of section 10E are clear and unless one of the two, limited exceptions are made out the evidence is simply inadmissible.
It is to be noted that the provisions dealing with confidentiality and admissibility of communications in family counselling are far more extensive than those dealing with similar processes such as a Conciliation Conference conducted by a Registrar (such communications being subject to section 131 Evidence Act 1995). Such differences are supportive, in my mind, of a stricter interpretation of the provisions of sections 10D and 10E and especially as:
a)The provisions of Part II Division 2 (and for that matter Part II Division 3 and section 60I) are intended to allow provision of not only “settlement negotiations” (as addressed by Conciliation Conferences and section 131 of the Evidence Act 1995 generally) but to encourage and allow therapeutic engagement and benefit therefrom which is, both purposively and effectively, different to negotiation (seeking to operate as an instrument of change rather than compromise and resolution) and which requires and involves far greater disclosure and trust to achieve its goals;
b)Part IIIB (containing the power to compel attendance at Family Counselling, courses and programs) commences with the objects of the section set out in section 13A namely:
(1) The objects of this Part are:
(a) to facilitate access to family counselling:
(i) to help married couples considering separation or divorce to reconcile; and
(ii) to help people adjust to separation or divorce; and
(iii) to help people adjust to court orders under this Act; and
(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and
(c) to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and
(d) to give the court the power to require parties to proceedings under this Act to make use of court or non-court based family services appropriate to the needs of the parties.
c)To the extent that it might, thus, be suggested that there is a “public policy” consideration raised in this case, it is more relevantly directed to the exclusion of evidence from sources otherwise legislatively protected as confidential and inadmissible and supportive of a narrow interpretation of the exceptions (and balanced against the Court’s obligations pursuant to provisions such as section 67ZBB).
In light of the above, paragraphs 9 and 11 of Ms Degraves’ Affidavit (to the extent that they go beyond simply reporting that Ms Degraves was telephoned by a worker from Unifam) are struck out.

Merits of the Application in a Case

Ms Degraves seeks extensive injunctive relief. In support of same
Ms Degraves relies upon each of the Affidavits identified together with specific portions of the Family Report.
It is submitted, in broad terms, that Mr Searle does not presently have the benefit of any order which provides for time or communication between he and the children. So much is correct.
As is observed by Counsel for Ms Degraves the only orders which have been made by the Court in these proceedings have been to facilitate participation in family counselling (or as is submitted by Ms Degraves’ Counsel a post separation parenting program), preparation of a Family Report and attendance through a supervised contact service (and which service was discontinued).
Time had occurred through the [omitted] Contact Service although the service was terminated by the Centre in June 2012. Thus, there has been no face to face time (other than Family Report interviews and such as may have occurred through the Keeping Contact program) between Mr Searle and the children or either of them since June 2012.
There are no other orders in force which would create in Mr Searle a right (see section 65N) to spend time or communicate with the children or either of them.
On the above basis, it is submitted on behalf of Ms Degraves that the injunctive relief sought does not create any significant prejudice to
Mr Searle as it would not terminate or interfere with any right which he has under an existing order.
Ms Degraves relies upon specific portions of the Family Report and particularly those dealing with interviews with the children and especially [X] (paragraph 20 to 29 inclusive) and evaluation thereafter (paragraphs 30 to 38 inclusive).
Ms Degraves has previously had the benefit of an Apprehended Domestic Violence Order (“ADVO”) made by a NSW Local Court. That order had imposed prohibitions upon Mr Searle in the following terms:
a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship;
b) The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship;
c) The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship;
ADDITIONAL ORDERS:
13.3A. The defendant must not approach, contact or telephone the protected person except for the sole purpose of arranging contact with the children or as permitted or authorised by any order, parenting plan or agreement under the Family Law Act 1975 or as agreed in writing.
The ADVO had been made on 9 December 2011 and for a period of twelve months (thus having expired on 8 December 2012). The order named both Ms Degraves and the children as protected persons.
Ms Degraves asserts that the orders thus sought by her are:
a)Consistent with the absence of time or communication at present;
b)Consistent with the absence of any order which provides for time or communication between the children and Mr Searle (and thus create no prejudice to Mr Searle who will “loose nothing” by the order being made); and
c)Necessary for the protection and wellbeing of Ms Degraves and the children.
Some time was spent by Counsel for each of the parties in seeking to identify whether the relief sought is relief pursuant to section 68B (contained within Part VII) or section 114 (contained within Part XIV).
The two sections are not dissimilar providing as follows:
Section 68B:
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
Section 114:
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f) an injunction relating to the use or occupancy of the matrimonial home.
(2) In exercising its powers under subsection (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights.
(2A) In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b) if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in which that residence is situated; and
(c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
(4) If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt's creditors.
(5) Subsection (4) does not limit subsection (3).
(6) If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.
(7) Subsection (6) does not limit subsection (3).
To the extent that injunctive relief is suggested to be sought for “the personal protection of the mother”, jurisdiction might be found in either section 114 or section 68B.
However, to the extent that injunctive relief for “the personal protection of the children” is sought, same must be found in section 68B and noting that that section 68A provides “This Division deals with proceedings for injunctions in relation to children”. This need not exclude section 68B (and Division 9 Part VII generally) from founding jurisdiction for injunctive relief for the protection of a parent with whom a child lives or spends time.

There is little difference as to which section is relied upon with respect to relief as regards “the personal protection of the mother” as, in any event, a power of arrest applies regarding any suggested breach of the order irrespective of the jurisdictional basis for same (see sections 68C and 114AA respectively).
To the extent that the relief is sought exclusively under section 68B it would be necessary for me to be satisfied, by reference to section 60CA that such relief is in the children’s best interests and in treating the children’s best interests as paramount.
In addressing this issue, Counsel for Ms Degraves submits that:
a)As a consequence of the communications between the Unifam worker and Ms Degraves, Ms Degraves is now labouring under a heightened level of anxiety, fear and concern;
b)That the children and, in particular, the child, [X], are distressed and, accordingly, the granting of such relief would ameliorate the child’s fears and concerns and be in accordance with the child’s expressed wishes (particularly as reported by the report writer
Mr L).
Counsel for Ms Degraves also submits that the Court is not asked or called upon to determine any issue as to the children’s relationship with the father in granting injunctive relief. However, the nature and effect of the injunctions, if granted, would be to preclude (under penalty of arrest) any communication on any level or by any form between
Mr Searle and the children and each of them. Thus, whilst I accept that the injunctive relief sought is not purposive in its restraint it is effective in precluding any contact or communication or, indeed, the obtaining of information (such as from [X]’s school).
Counsel for Mr Searle has referred me to a number of authorities including In the marriage of J (1979) FLC 90-718 and Waugh and Waugh (2000) FLC 93-052. It is submitted, by reference to each of those authorities, that Ms Degraves must demonstrate that special circumstances exist which would warrant an exercise of the Court’s discretion in granting such relief.
I do not accept that the Court must be satisfied that there are “special circumstances” but simply circumstances which would demonstrate (perhaps an obligation strengthened since the inclusion of section 69ZBB) that the children (or the mother) need protection from harm, be it physical or psychological.

The restraint sought with respect to the mother’s protection

The evidence of the parties properly before the Court is that:
a)There has been no communication between the parties for some significant time and well over a year;
b)There was no breach or suggested breach of the Apprehend Domestic Violence Order whilst it existed;
c)There has been no threat communicated by the father to the mother (whether directly or indirectly);
d)The father is unaware of the mother’s address or other contact details.
The mother’s evidence, at its highest, suggests a clear anxiety and fear by her of the father. Whether that fear is well placed or otherwise is a matter for determination at a latter time. However, for present purposes, I accept that it is genuine.
The mother’s earlier Affidavit material suggests a history of family violence between the parties which I do not discount. However, there is simply no evidence which suggests that the father has attempted to take any of the actions which are now sought to be restrained nor that he would. Further, I am satisfied that there are ready and available means by which the mother can address her concerns through action other than Application to this Court and use of this Court’s coercive powers to ameliorate and mollify concerns that the mother may hold.
In those circumstances I am not satisfied that an order for “the personal protection of the mother” is warranted or required on the evidence available.
I arrive at that position having regard to both the possible founding of jurisdiction in sections 68B and/or 114.
It is not a matter for the Court to grant an injunction simply because it is sought. The Court must determine whether the Court’s jurisdiction is enlivened and thus discretionary relief granted based upon evidence before the Court. The evidence before the Court does not suggest any sufficient basis to warrant the injunctions as sought broad and expansive as they are.

Personal protection of the children

It is sought to protect the children through restraining Mr Searle from coming within a kilometre of the children’s home or school or coming within one kilometre (presumably the route) by which the children are transported to and from school.
In addition, it is sought to restrain Mr Searle from communicating with the children or either of them or attempting to communicate with them or to ask any other person to do so, together with a restraint upon a number of further actions (such as following or attempting to follow the children) or communicating with them by telephone, email, text message or social media or from contacting their school.
The evidence of Ms Degraves is that the only form of communication that has occurred between Mr Searle and the children or either of them has been a number of emails sent by Mr Searle to [X] up to and concluding 20 May 2013. Save for the last of those emails, there has been nothing contained within them which could, objectively, cause any concern.
The last email (following upon seven earlier emails which were not responded to by [X]) contains the following statement:
What’s going on? I haven’t heard anything back about if you are getting these emails or not. Just send me a note that your getting them OK otherwise I’ll need to go back to the solicitors to sort out something else.
It is suggested that this statement is inappropriate and lends support to the injunctions as sought. I am not satisfied that this is so.
Whilst clearly it is desirable for children to not be made aware of or acquainted with proceedings between their parents regarding their welfare, in this case:
a)[X] is clearly aware of the proceedings (so much is contained expressly within the Family Report);
b)[X] has been engaged in a process through Unifam with his mother and father in which the proceedings have, in all probability, been made known to him;
c)[X] has been involved in past ADVO proceedings;
d)The statement made by Mr Searle, whilst referring to the need to “go back to the solicitors” does not make any more detailed statement and, in particular, does not refer to nor seek to apportion blame to Ms Degraves for the absence of communication.
Whilst it might be validly submitted that it is undesirable that a parent would make such a comment to a child, it must be viewed within the context of these proceedings and the entirely appropriate and polite communications forwarded by Mr Searle to [X] over a period of some months prior thereto.
Specific reliance is placed by Ms Degraves upon the Family Report and its provisions relating to interview with [X] and observation of [X] with his father.
The Family Report (as to which significant reliance is placed by
Ms Degraves but which is, at this point, untested) does not suggest any expression by [X] of fear arising from communication with his father. Ms Degraves suggests that such fear is manifest following receipt of emails and at paragraph 20 of her Affidavit she gives evidence:
On or about 20 May 2013 [X] and I had a conversation where [X] said words to me of:- “[Mr Searle] just sent me an email saying that I had to reply, but I don’t want to. Can’t we do something so that I don’t have to receive them anymore.” After [X] and I saying some other things, [X] said to me:- “I had a nightmare the other night. I dreamt I was sleeping and [Mr Searle] came in all dressed in black and kidnapped me. I woke up and was really scared. My heart was racing.”
The Affidavit then relates a number of matters relating to past history including the assertion that:
a)[X] had been exposed to family violence prior to separation;
b)[X] had been subjected to family violence;
c)[X] has been seeing a psychologist since late 2011.
Ultimately, the Affidavit concludes (paragraph 24):
I am very concerned that the father is increasing his attempts to have [X] communicate with him and especially where [X] has a strong reaction, such as nightmares.
Mr Searle, for his part, suggests that there has been a deliberate and active campaign on the part of Ms Degraves to interfere in his relationship with both children and in particular [X]. In support of this, reference is specifically made to the Family Report and the refusal by [X] to communicate with his father and particularly at paragraph 25 being described as:
…[X] repeated his mantra, “I have nothing to say”.
That paragraph concludes with:
…The more insistent Mr Searle became, the greater was [X]’s resistance. The session was then terminated.
The above passage is not quoted to suggest that it is supportive of

Mr Searle’s position and is equally consistent with an interpretation that the child has (and based on Ms Degraves’ evidence for good reason) formed a strong opposition to a relationship with his father.
Whilst there is controversy regarding the above provisions and interpretations thereof, I am struck by the absence of evidence that suggests that either:
a)It is contrary to [X]’s best interests for the father to forward emails. It is, after all, a matter for [X] to read such emails or not (and subject to their contents being appropriate);
b)The absence of any evidence which would suggest that any other action by Mr Searle (such as in contacting the children’s school and enquiring as to whether [X] had seen a school counsellor) is contrary to [X]’s best interests or needs.
In this regard, paragraph 18 of the mother’s Affidavit suggests:
On 6 May 2013 I received a telephone call from the Deputy Principal of [X]’s school. There was a conversation where the Deputy Principal said words to the effect to me:- “[X]’s father has called, asking for the school’s assistance and intervention because his son won’t speak to him. I am unsure of what he (the father) wanted us to do for him and I will tell him that. [X] has access to the School Counsellor at any time he wishes to speak to them. But the school can’t do anything further about [X] not wishing to speak to his father.”
Having regard to the above matters, I am not satisfied that injunctions as sought by Ms Degraves can or should be made. There is simply no evidence to support that it is in the child’s best interests for such orders to be made.
The matter cannot be determined (as Ms Degraves would seek) on the basis that prejudice would not be caused to Mr Searle and as such injunctions would not, in reality, change the present circumstance whereby there is no time or communication.
Ms Degraves has a positive obligation to demonstrate, based on admissible and probative evidence, that the child’s best interests would be served by injunctions being made and/or the children’s best interests would be prejudiced by the refusal of such relief. Neither case has been made out.
I am satisfied that it would be detrimental to the emotional functioning of either [X] or Ms Degraves if information were supplied by the school to Mr Searle which had the effect of disclosing the present address of Ms Degraves and the children and, accordingly, I will make an order which imposes a restraint upon Mr Searle in seeking such information.
The Court cannot, without notice to the child’s school, make an order which imposes a burden upon that school or any employee thereof to not provide information. However, on the basis that a copy of any orders made by this Court may be provided to the school by the parents (or by the Independent Children’s Lawyer) the school would be then placed in a position of knowledge to understand that any request for such information need not and should not be met by them.
Beyond the above, I am not satisfied that a case is made out for injunctive relief as sought. The injunctions as proposed are broad and extensive. It is proposed that the injunctions would carry with them arrest without warrant in the event of breach. Such serious consequence should only flow in the event that a case is made out demonstrating that the children’s best interests require same or would be prejudiced by a refusal of same. I am not satisfied that that is so.
I also add, for completeness, that even if the entirety of paragraphs 9 and 11 of the mother’s Affidavit had been before the Court I would not be satisfied that the mother’s case was made out.
Therefore, I make orders as set out at the commencement of this Judgment.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 28 June 2013

[2013] FCCA 660

28 June 2013

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Injunction

Procedural Fairness

Jurisdiction

Statutory Construction

Judicial Review