Eldred and Denzil

[2015] FCWAM 170

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ELDRED and DENZIL [2015] FCWAM 170

CORAM: KAESER M

HEARD: 16 JULY 2015

DELIVERED : 6 AUGUST 2015

FILE NO/S: PTW 1617 of 2013

BETWEEN: MR ELDRED

Applicant

AND

MS DENZIL
Respondent

Catchwords:

Undefended child related proceedings; need to protect children from potential harm in father’s care; personal protection injunctions granted; mother and children living interstate; children to continue living with the mother and to communicate with the father.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: No appearance

Respondent: Ms C Smith

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Reader Lawyers & Mediators

Case(s) referred to in judgment(s):

Goode & Goode (2006) FLC 93-286

McCall & Clark (2009) FLC 93-405

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Eldred] and [Ms Denzil] commenced a relationship in 2006; were married on [in] 2007 and separated in late‑2008.

2They have two children, namely, [Child A] born [in] 2006 and [Child B] born [in] 2007.

3On 7 February 2013 the mother relocated with the two children to [Sydney]. This matter was initially listed for trial before me on 16 July 2015 with an estimated hearing time of two days. On 10 July 2015 the mother filed a Form 2 application seeking to proceed on an undefended basis and seeking to dismiss the father’s Form 1 application effectively for want of prosecution.

4The Court made those orders in those terms and converted the two‑day trial to a two‑hour estimated hearing time given that it was undefended. The Independent Children’s Lawyer was also discharged.

5The trial proceeded on 16 July 2015 and there was no appearance by the father. Given that the parties were married, these proceedings fall to be determined under the provisions of the Family Law Act 1975 (Cth).

The mother’s case

6The mother relied upon her trial affidavit filed on 8 July 2015, together with affidavits of [Ms Baxter] and [Ms Bond] filed 2 July 2015. She also relied upon her Form 13 financial statement filed 2 July 2015.

7The orders proposed by her were set out in a minute of final orders sought filed on 29 May 2015. They were in the following terms:

1.All previous parenting orders be hereby discharged.

2.The children, [Child A] born [in] 2006 and [Child B] born [in] 2007 (“the children”), live with the respondent mother, [Ms Denzil] (“the mother”).

3.The mother have sole parental responsibility for the children.

4.The applicant father, [Mr Eldred] (“the father”), communicate with the children as follows:

(a)by telephone call the first Sunday of every month, such call to take place between 6.30 pm and 7.00 pm AEDT, with the father to initiate the call to the children;

(b)by telephone call on the occasions of Christmas and each of the children’s birthdays, such call to take place between 6.30 pm and 7.00 pm AEDT, with the father to initiate the call to the children;

(c)by way of cards and gifts on the occasions of Christmas, Easter and each of the children’s birthdays; and

(d)by way of letter on one occasion in each three-month period with the first three-month period to be from 1 July 2015 to 3 September 2015.

5.The communication referred to in paragraphs 4(a) and 4(b) above is to occur with the father telephoning the children on a telephone number nominated by the mother, such telephone number be provided to the father within 7 days of the parties receiving a sealed copy of these orders.

6.The communication referred to in paragraphs 4(c) and 4(d) above is to be sent to a postal address nominated by the mother, such address to be provided to the father within 7 days of the parties receiving a sealed copy of these orders.

7.The mother shall facilitate the children communicating with the father by telephone, email, letter, cards or any other means in accordance with their wishes.

8.The mother be permitted to remove the children from the Commonwealth of Australia for the purpose of travelling for a period of no more than four (4) consecutive weeks per calendar year.

9.The mother be at liberty to obtain passports for the children and to that end, the necessity for the father to consent to the issue of passports for the children be dispensed with.

10.Subject to any other requirements of the Department of Foreign Affairs and Trade, passports be issued to the said children to enable them to leave Australia.

11.The father be restrained by injunction and an injunction is hereby granted restraining him from:

(a)molesting, harassing or abusing the mother and/or the children or interfering with the mother and/or children’s manner of living;

(b)coming into contact with the children or communicating with the children other than in accordance with these orders;

(c)coming into contact or communicating with the mother other than in accordance with these orders;

(d)removing or attempting to remove the children from the care and control of the mother, any school, any childcare service or third person;

(e)coming within 100 metres of the residence of the mother and/or the children or any premises where the mother and/or children are located;

(f)coming within 100 metres of any school or childcare service attended by the children from time to time; and

(g)causing, assisting or allowing any other person to engage in the conduct described by paragraphs 11(a) to 11(f) inclusive.

12.The injunctions provided for in paragraphs 11(a) to 11(f) inclusive a [sic] be deemed to be injunctions made for the personal protection of the mother and the children pursuant to s 235 of the Family Court Act 1997 (WA) and in the event a police officer believes on reasonable grounds that the father has breached these orders the police officer may arrest the father without warrant.

8In relation to that last-mentioned paragraph, the Court does not intend to make that order. In my view it is not a necessary order to make, but in any event the provisions of the Family Court Act 1997 do not apply to this matter.

9Notwithstanding the lack of involvement of the father, and the suggestion by counsel for the mother that the Court might consider not putting in place orders in relation to the father’s communication with the children, I formed the view that such orders would be in the children’s best interests. In any event, they were orders proposed by the mother.

10The Court also took into account the single expert report dated 29 August 2014 by Professor Laidler and the Family Consultant memorandum dated 16 July 2013.

Witnesses

Ms Baxter

11Ms Baxter is the mother of the mother in these proceedings. She corroborated some of the evidence from the mother in relation to family violence.

Ms Bond

12She is employed as a home and community carer and provides respite care to the mother for the children, [Child C] and Child A (I note that the mother has had two subsequent relationships since the relationship with Mr Eldred ended in late‑2008. She has had two children with [Mr Jones], namely [Child D] and [Child E], and a third child, [Child F], with [Mr Potts].)

13She provided positive evidence about the mother’s parenting and her care of the children.

The single expert

14Terrence John Laidler provided a single expert report dated 29 August 2014. Whilst I have taken into account the entire contents of that report, for the purposes of this judgment in the circumstances I refer to the following.

15He confirmed that Child A and Child B routinely refer to their father as [“J”] and that Child A said, “I love him because he is my dad…but I’m a bit scared of him too”. Child A also mentioned that he was “bad to my mum too…when he hit her and when he threw water on her”. Mr Laidler expressed the view that:

I had no doubt that what [Child A] said to me was voluntary and reflected his own wishes: it also reflected the very deep ambivalence that he feels when he considers his relationship with his father and the safety and security he enjoys with his mother.

16He reports Child B as saying that she:

wants to stay with Mummy…because I remember when [J] was with Mummy and he was not very nice…he locked me and [Child A] outside because he doesn’t like kids…he said he’d chop mine and [Child A’s] fingers off if we were bad…and he was mean to Mummy too.

17She also said that she “loves him, but is a bit scared of him too”. Mr Laidler concluded that the children should live with their mother and that she should have parental responsibility for them and at that stage the question of the children spending time with the father should be reserved.

Family Consultant

18Family Consultant Hanavan provided a case assessment conference report dated 16 July 2013. Both parties attended that conference. Once again, I have taken into account the entire content of that memorandum, but highlight the following:

(a)The Department for Child Protection and Family Support had involvement with the children in 2009 and 2010 and the file was closed. They had further contact with the family for domestic violence, family support and practical problems between 2011 and 2013. The father denied any family violence or threats of violence towards the mother.

(b)In relation to the incident in August 2009 for which he was charged, the father claims the mother had requested his assistance as she was being abused by her then current partner, [Mr Jones]. The father denied the allegations about threatening to harm the children and claims he has never harmed them.

19The Family Consultant raised the following issues of concern:

(a)The parties present different and somewhat polarised accounts of their relationship and the experiences of the children in each other’s care.

(b)The issue of primary concern to the Family Consultant is the allegations [sic] of family violence and harm to the children. The father has been charged with carrying and [sic] article with intent to cause fear in 2009 and there are domestic violence incident reports provided by police. Notwithstanding the police incident reports are from several years ago and the father’s denials of making threats against the mother or the children, the allegations are serious in nature.

(c)The Family Consultant is also concerned about the mother’s recent relocation to Melbourne and the impact this may have on a relationship between the father and the children.

Law in relation to parenting issues

20The proceedings commenced in April 2013, after to the amendments to the definitions of family violence and abuse which took effect in relation to cases commenced on or after 7 June 2012. The newer definitions therefore apply and will be referred to in these reasons.

21In deciding whether to make any parenting order, I must treat the best interests of the child as the paramount consideration.

22I have also had regard to the objects of the Act and the principles which underlie those objects. They provide the context in which the above considerations are to be examined and weighed.

23Section 60B(1) provides:

(1) The objects of this part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2460B(2) provides:

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

25The Full Court in Goode & Goode (2006) FLC 93-286 at [56] made it clear that when a parenting order is sought, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in s 61DA(2) and (4).

26As the Full Court in Goode & Goode (supra) said at [72]:

In our view, it can be fairly said that there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

27To assess what is in the child’s best interests, I must consider the “primary” and “additional” considerations set out in s 60CC(2) and (3).

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

28It is clear that meaningful means a relationship that is important, significant and valuable to the child (see McCall & Clark (2009) FLC 93-405).

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

29The definitions of abuse and family violence that apply to this matter are set out below:

Abuse, in relation to a child, means:

(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.

Family violence is defined as:

Violence, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.

30Section 4AB(2) provides examples of behaviour that may constitute family violence. These include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

31Section 4AB(4) provides examples of situations that may constitute a child being exposed to family violence. They include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

32Section 60CC(2A) provides that in applying the above considerations the Court is to give greater weight to the need to protect the children from harm.

33The mother makes a series of family violence allegations in relation to the father’s violent behaviour towards her. Examples are contained at paragraphs [35], [47], [50] and [52] of her trial affidavit. These are examples only. She says that threats of violence continued after separation – see for example paragraphs [99] and [100].

34Given her evidence was uncontested, and given my brief observation of her in the witness box, I accept that evidence.

35It is therefore necessary for the Court to consider appropriate orders to ensure that the children are protected from potential harm.

36In my view, the presumption in the legislation that the parents should have equal shared parental responsibility for the children does not apply in this case because of the family violence that has clearly occurred. I am therefore not bound to consider equal time or substantial and significant time. In any event, neither of those arrangements would be in the best interests of these children in the current circumstances where the parties live in different states. They would not otherwise be practicable in any event.

37Much of the mother’s evidence was taken up by references to the father’s brother, [R], and his activities, who she says is a member of the “[an] Outlaw Motorcycle Gang”. That evidence related to the mother’s concerns that:

(a)the father intended to join the [Outlaw Motorcycle Gang];

(b)the father had taken the children to the [Outlaw Motorcycle Gang] club house;

(c)the mother found it intimidating for the children to be involved in that organisation;

(d)at [89], the mother said:

Whenever I did something [J] did not agree with he started to threaten me with violence from and involvement by the [Outlaw Motorcycle Gang];

(e)the father threatened to get his brother involved [which the mother took to mean violence];

(f)the father told the Family Consultant in July 2013 that his brother was no longer involved in the [Outlaw Motorcycle Gang], but the subpoenaed material provides evidence that allows the Court to infer that his brother is still involved.

38The subpoenaed material and the mother’s evidence leads me to conclude that the mother’s fears are genuine and reasonably held. The subpoenaed material includes details of injuries that one may associate with criminal activities.

Additional considerations

39Section 60CC(3) provides the additional considerations. The relevant ones are set out below.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

40The children have said positive things regarding the father, but have also expressed some fear. I have canvassed the views expressed to the single expert witness.

The nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child)

41The mother clearly has an extremely good relationship with the children. The father has little of a relationship with them given the lack of time spent with them and potentially given the behaviour during the relationship. It is appropriate to maintain some telephone communication and contact in writing. The father of course has not sought orders in this matter given that his application was dismissed.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child

42The father has not maintained a regular presence in the children’s lives. He did not see the children for the first six to eight months after separation in October 2008. He initially started seeing them about once per month. He has never telephoned the children on special occasions or given them presents. The lack of involvement is perhaps reflected in the fact that the children refer to the father as “J”, not “Dad”.

43The mother moved to [New South Wales] in an effort to distance herself and the children from the father in order to afford each of them some degree of protection, safety and security.

44The father has not been actively involved in these proceedings for some time. The Court’s decision therefore is based solely on the mother’s uncontested evidence. On that basis, it is clear that the mother acted appropriately and protectively and has provided the children with a warm and nurturing environment.

45The children need to be protected from harm or at least the exposure to violence that may occur in the father’s care. The orders proposed by the mother therefore, in my view, are appropriate and in the children’s best interest. They will ensure, hopefully, that the children maintain communication with the father, but are otherwise safe.

Any family violence involving the child or a member of the child’s family

46I have dealt with this issue already.

If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

(v)any other relevant matter

47Final orders were made by consent on 8 October 2013 in the family violence order proceedings. That intervention order expired one year later. Given that expiration, it is proper to put in place the various injunctions sought by the mother.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

48This is not a particularly significant factor in this matter.

Overseas travel

49Given the history set out by the mother, and the evidence relied upon and the mother’s clear ties to Australia, I am satisfied that she is not a flight risk in any way. I am therefore prepared to put in place the proposed orders in relation to travel overseas.

Orders

1.All previous parenting orders be hereby discharged.

2.The children, [Child A] born [in] 2006 and [Child B] born [in] 2007 (“the children”), live with the respondent mother, [Ms Denzil] (“the mother”).

3.The mother have sole parental responsibility for the children.

4.The applicant father, [Mr Eldred] (“the father”), communicate with the children as follows:

(a)by telephone call the first Sunday of every month, such call to take place between 6.30 pm and 7.00 pm AEDT, with the father to initiate the call to the children;

(b)by telephone call on the occasions of Christmas and each of the children’s birthdays, such call to take place between 6.30 pm and 7.00 pm AEDT, with the father to initiate the call to the children;

(c)by way of cards and gifts on the occasions of Christmas, Easter and each of the children’s birthdays; and

(d)by way of letter on one occasion in each three-month period with the first three-month period to be from 1 July 2015 to 3 September 2015.

5.The communication referred to in paragraphs 4(a) and 4(b) above is to occur with the father telephoning the children on a telephone number nominated by the mother, such telephone number be provided to the father within 7 days of the parties receiving a sealed copy of these orders.

6.The communication referred to in paragraphs 4(c) and 4(d) above is to be sent to a postal address nominated by the mother, such address to be provided to the father within 7 days of the parties receiving a sealed copy of these orders.

7.The mother shall facilitate the children communicating with the father by telephone, email, letter, cards or any other means in accordance with their wishes.

8.The mother be permitted to remove the children from the Commonwealth of Australia for the purpose of travelling for a period of no more than four (4) consecutive weeks per calendar year.

9.The mother be at liberty to obtain passports for the children and to that end, the necessity for the father to consent to the issue of passports for the children be dispensed with.

10.Subject to any other requirements of the Department of Foreign Affairs and Trade, passports be issued to the said children to enable them to leave Australia.

11.The father be restrained by injunction and an injunction is hereby granted restraining him from:

(a)molesting, harassing or abusing the mother and/or the children or interfering with the mother and/or children’s manner of living;

(b)coming into contact with the children or communicating with the children other than in accordance with these orders;

(c)coming into contact or communicating with the mother other than in accordance with these orders;

(d)removing or attempting to remove the children from the care and control of the mother, any school, any childcare service or third person;

(e)coming within 100 metres of the residence of the mother and/or the children or any premises where the mother and/or children are located;

(f)coming within 100 metres of any school or childcare service attended by the children from time to time; and

(g)causing, assisting or allowing any other person to engage in the conduct described by paragraphs 11(a) to 11(f) inclusive.

12.The proceedings otherwise be dismissed.

I certify that the preceding [49] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary