Emmings and Wileman

[2017] FamCA 940

FAMILY COURT OF AUSTRALIA

EMMINGS & WILEMAN [2017] FamCA 940

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Where the hearing was undefended to the failure of the father to attend the hearing – Where there are allegations of family violence – Where an AVO is currently in place for the protection of the mother from the father – Where the mother was granted a certificate under section 128 of the Evidence Act 1995 (Cth) for her prior evidence that was inconsistent with later affidavits – Where the father has not spend time with or communicated with the children in two years – Where the father consented to interim orders that the mother had the capacity to care for the children – Where the father consented to interim orders that the children should live with the mother and that she have sole parental responsibility – Where no orders are made regarding contact between the children and their older half-brother – Ordered that the mother have sole parental responsibility for the children and the children live with the mother – Ordered that the children spend no time and have no contact or communication with the father

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Ms Emmings

RESPONDENT: Mr Wileman

INDEPENDENT CHILDREN’S LAWYER: Powe & White Family Lawyers

FILE NUMBER: NCC 2480 of 2016

DATE DELIVERED: 7 November 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT:	Joplin Lawyers
COUNSEL FOR THE RESPONDENT:	N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Powe & White Family Lawyers

Orders

1. The mother have sole parental responsibility for B, born … 2013 and C, born … 2015 (“the children”).

2. The children live with the mother.

3. The children spend no time and have no contact or communication with the father.

4. Pursuant to s 68B(1) of the Family Law Act 1975 and for the protection of the mother Ms Emmings, born … 1991 and the children, the father is restrained as follows from:

   a)Attending:

   i)Any school/pre-school/daycare centre that the children or either of them attend;

   ii)Any sporting or extra-curricular activity in which the children participate;

   iii)The residence of the mother.

   b)Contacting or communicating with the children or the mother by any means whatsoever and from causing any other person on his behalf to contact or communicate with the children or the mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Emmings & Wileman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2480/2016

Ms Emmings

Applicant

And

Mr Wileman

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Emmings, aged 26, whom I shall refer to as the mother, for final parenting orders in relation to two children; boys aged four and two.

2. The subject children live with the mother and have not seen their father, Mr Wileman, aged 34, whom I shall refer to as the father, for the past 16 months.

3. The matter was set down for trial for three days, commencing 6 November 2017.

4. On the first day, the mother was present, represented by a solicitor and counsel. The independent children’s lawyer was present, instructing counsel. There was no appearance by or on behalf of the father.

5. The father apparently made a telephone call to a member of the Court staff in the morning prior to the commencement of the trial. A subsequent attempt to return the telephone call was apparently unsuccessful.

6. There has been no explanation for the absence of the father. I note that on the following day, 7 November 2017, the father was present for a directions hearing in another case which is being dealt with in this Court involving his older child from an earlier relationship.

7. Attempts were made to contact the father in open Court on four different mobile numbers provided at various times. There was no response on any number.

8. The solicitors for the father had filed a Notice of Ceasing to Act on 6 October 2017.

9. On 12 October 2017, the Independent Children’s Lawyer wrote to the father a detailed and helpful letter reminding him of the hearing dates and providing him with information about attending on Legal Aid if he was seeking a grant of aid in the absence of his previous legal representatives. That letter became Exhibit 1. There was also a request in it for the father to undertake a drug screen. That request was not responded to and has some significance.

10. The matter was adjourned until 10.45 am on that day against the possibility of lateness or delay. The trial then commenced in the absence of the father.

Relevant History of Litigation

1. On 16 May 2017 the father had filed a Response proposing orders as follows:

   a)that the parties have equal shared parental responsibility;

   b)that the children live with the mother; and that they spend time with him:

   i)on alternate weekends;

   ii)in school holidays;

   iii)and at other special times.

2. The father did not file a trial affidavit by himself or for the other two witnesses foreshadowed when directions for trial were made in August 2017.

3. The mother filed her Initiating Application on 29 September 2016 together with a Notice of Risk and an affidavit in support of the interim orders she sought.

4. On 22 November 2016 the father consented to interim orders that the mother have sole parental responsibility and that the children live with her. The father was ordered to file and serve a Response and an affidavit in relation to interim matters by 31 January 2017. He did not.

5. On 10 February 2017 time for filing by the father was extended to 3 March 2017. No response was filed.

6. On 31 March 2017 the matter was adjourned to 3 May 2017 for case management with a notation that the matter would be set down for undefended hearing if the father did not file his documents.

7. By 3 May 2017 the father had not filed any document. The matter was listed for undefended hearing on 24 August 2017 and was otherwise adjourned for trial directions. The time for filing was again extended, to 12 May 2017.

8. On 16 May 2017 the father filed a Response. He also filed an affidavit responding to the mother’s affidavit filed with her Initiating Application eight months prior. There was a detailed and quite comprehensive denial of all allegations of wrongdoing raised by the mother in her September 2016 affidavit. It is one of the frustrating aspects of this case that the father did undertake the exercise of confronting all allegations made against him but ultimately did not attend to challenge the mother on the basis of the conflict in their evidence.

9. On 23 May 2017 the undefended hearing date was vacated. The parties were directed to attend for preparation of a Family Report.

10. In August 2017 the matter was ultimately set down for these trial dates.

Short History of the Parties

1. The parties began their relationship in 2011 and began living together in 2012.

2. The mother became involved in the acrimonious relationship between the father and his former partner, the mother of his oldest child, D, aged 10. Tendered into evidence as part of a tendered bundle,[1] was a document which indicated that an Apprehended Violence Order had been taken out for the protection of the father from his former partner.

   [1] Exhibit 6 – NSW Police records, ref M3.7

3. The parties’ first child was born in mid-2013.

4. In January of 2014 the father began sending threatening messages to his former partner on the basis that he believed that she was “insulting his girlfriend”.[2]

   [2] Exhibit 6 – NSW Police records, refs M3.6 and M3.7

5. In 2015 the parties’ second child was born. The mother says that it was after this time or perhaps late in her pregnancy that she observed a change in the father’s behaviour, and whereas he had previously been a good father and an acceptable partner, he became more aggressive. The maternal grandparents, both through their comments to the Family Consultant and in the affidavit of the maternal grandmother, affirmed that they saw a change in the father for the worst.

6. In April 2015 the mother said that she became anxious about the father’s whereabouts and went to look for him. She found him asleep in his brother’s home. There was an argument between them, and the father then went out and drove away with the sleeping children in the back of the mother’s car. This was the first occasion of a violent confrontation described in the mother’s evidence.

7. In May 2015 the mother gave evidence as a witness for the father in Court proceedings with the father’s former partner. In that hearing, she denied that there had been any family violence. And on 15 August 2015, in police records,[3] there is a reference by police to “No reported domestics between the parties.”

   [3] Exhibit 6 – NSW Police records, ref M3.4

8. On 21 August 2015 the Domestic Violence Service became involved in the life of the mother, and she describes increasing incidents of increasing violence.

9. On 7 September 2015 a final Apprehended Domestic Violence Order was issued from the Local Court protecting the mother from the father for a period of 12 months.

10. It must have been at around this time, August/September of 2015, that the father’s child from his current relationship was conceived. This is certainly consistent with the mother’s allegations that the father was involved with another woman at that time, and this was a cause of conflict between them.

11. On 30 September 2015 the parties separated. There followed a period of about three months where it is the mother’s evidence, unchallenged by the father, that there were several violent incidents.

12. First of all, on 20 March 2015, the father came to the mother’s home despite the Apprehended Violence Order which restrained him from doing so, damaged her front door and left a bag of Christmas decorations.[4]  He was subsequently charged with a breach and dealt with on 22 November 2015 at Singleton Local Court.

    [4] Exhibit 6 – NSW Police records, ref M3.3

13. On 23 November 2015 the father sent, and he concedes that he did, a stream of hateful, derogatory texts to the mother which were insulting, obscene and repetitive.[5]

    [5] Exhibit 6 – NSW Police records, ref M3.2

14. As a result of the damage to the mother’s front door, and perhaps for other reasons, the father was given a custodial sentence and served four months in prison. The mother had taken the children and gone to live with her parents.

15. On 26 February 2016 the Apprehended Violence Order was varied by the Court to extend the period of time from 12 months to three years, which I take to be until 7 May 2018, but it may be that an additional three-year period was established by the variation on 26 February 2016. In any event, the mother is currently protected by an Apprehended Violence Order.

Evidence

1. The mother relied on the following documents:

   a)her amended Initiating Application filed 20 September 2017;

   b)the affidavit of herself filed 19 October 2017;

   c)the affidavit of the maternal grandmother, Ms E Emmings, filed 19 October 2017.

2. The father had filed his Response on 16 May 2017 and the affidavit referred to earlier in these reasons filed 16 May 2017, which I have read, and also, because the affidavit was entirely responsive to an earlier affidavit, I have also read that affidavit filed 20 September 2016.

3. There was a Family Report from the Senior Family Consultant at this registry dated 11 August 2017.

Oral Evidence

1. The matter proceeded with cross-examination of the mother by the independent children’s lawyer and some oral evidence and cross-examination of the Senior Family Consultant. There was no testing of all of the allegations raised by the mother about the conduct of the father.

2. The mother sought and was granted a certificate under section 128 of the Evidence Act 1995 (Cth) for her evidence. This relates to her having given evidence in a trial involving the father and his former partner, where she gave evidence that was inconsistent with later affidavits.

THE LAW

Primary Consideration

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

1. In making a decision about parenting arrangements for children, the Court must turn to the provisions of section 60CC to consider the matters set out there.

2. The primary consideration is one of meaningful relationships between children and their parents, with the Act being explicit that the safety of children has priority over the preservation of those relationships.

3. In this case, it must be the case that C, the younger child, aged just over two, probably no longer has a memory of his father and certainly not an active relationship. The older child had established a meaningful relationship with his father and with his older half-brother and had enjoyed that relationship. He has, over 12 months or so, referred less and less often to his wish to see his father.

Secondary Considerations

1. In considering the secondary considerations, I turn to the following matters:

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

1. Although the older child, B, is only four, he is described by the Senior Family Consultant as “a bright and active child.”[6]

   [6] Family Report dated 11 August 2017, pars 104-112

2. The mother had reported to the Senior Family Consultant that B had said to her, “My dad is naughty. Why did he hurt you?”

3. If I accept the mother’s evidence, B witnessed an occasion where his mother was hurt by his father.

4. Of significance is the fact that B would not speak about his father. When his name was mentioned, he simply said no and shook his head. A further attempt led to the child frowning and not responding. No further attempts were made to discuss the father with B, and they were not brought into contact with each other for observations.

5. The mother acknowledged that B loved his father and had wanted to see him and was upset about not doing so. That was confirmed by the maternal grandparents, who told the Senior Family Consultant that because the father lived nearby to their home, the child had often asked them to take him there and had cried when the answer was “no”;[7] 

   [7] Family Report dated 11 August 2017, pars 111 and 112

6. C, at two years and four months of age at time of interview, was simply observed to be relaxed and happy in his relationship with his mother, younger brother and maternal grandmother at interview.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother has been responsible for the primary care of the children since the birth of each of them but exclusively responsible since September 2015, when the relationship between the parties came to an end.

2. The children are doing well and are developmentally appropriate.

3. The mother has made decisions now and tentatively for the future in relation to education and religion, and there is no relationship or communication between herself and the father.

4. In relation to child support, the father pays no child support for the subject children. The mother has sought and been granted an exemption from pursuing him for child support on the basis of her fears for her own safety.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The Senior Family Consultant was clear to say that re-introducing the father into the children’s life, especially B’s, would likely be very unsettling for him and that if the Court accepted that the father was capable of violence and represented a threat to the mother, then it could re-traumatise the children to introduce him to their lives to any extent.

2. It also had the potential to set up a regime which the father would not comply with, which would lead to disappointment. The clear view of the Senior Family Consultant was that that would be worse than having lost the relationship entirely.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. There is a significant practical difficulty to time between the children and their father.

2. The mother is living with her new partner at an undisclosed address. She does not wish to disclose those details, where she lives or the name and circumstances of her partner, for safety reasons.

3. It would be impossible to expect that very young children, even if it was appropriate to do so, could understand that they were not to discuss where they lived, who they lived with, who they spent time with and details of their local area.

4. It should be said that when this matter was referred for a Family Report to be prepared, the notation to the orders was that the solicitor for the mother advised the Court that the father had a new partner who should be interviewed. The Court is now aware that at that time the orders were made, the mother had a new partner with whom she had been living for about six months, although there was no reference to him in Court. The mother did mention the existence of a new partner to the Senior Family Consultant and raised concerns for his safety at the hands of the father. However, she chose not to refer to him in her affidavit and not to bring evidence from him.

5. To that extent, the children are living with a person of whom the Court has no knowledge other than the mother’s evidence that he is a quiet and humble person who enjoys social activities with herself and the children.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother described the father as a great dad at the beginning but that he changed. She particularly referred to violence against herself by both threat and physical attack, also that he had hurt and killed animals, had punched a cow, had shot a cow, had hurt and killed dogs that had been family pets.

2. The maternal grandmother confirms that she and the maternal grandfather were aware of the father attacking a cow and later shooting it.

3. In this context of capacity and of that kind of behaviour, I note that contained within the material tendered into evidence in Exhibit 6 was a drug screen for the father in July of 2017 which was positive for the use of Methamphetamine or Ice. The mother’s clear assertion is that she believes the father has been using that drug and perhaps also cannabis and that it accounts, at least to some extent, for his behaviour. She also refers to the fact that he has access to guns.

4. Other material tendered into evidence in Exhibit 6[8] notes that the police searched the father’s property on 5 January 2017 with a search warrant, and during that warrant, police located

   two unknown tablets, throwing knives, two large, clear plastic re-sealable bags containing an unknown white substance, large amount of cannabis leaf, a crossbow with arrow, one firearm without a trigger, one wooden firearm stock with no barrel and three cannabis plants.

   [8] Exhibit 6, NSW Police records, ref M5.1 and M5.2

1. The mother also asserted that she had been told by police that the father was considered as a possibility for having obtained guns. There is no evidence on that point.

2. The records[9] also reveal that six days after the police search of the father’s property, his current partner attended the police station to complain of violent, threatening conduct by the father, which was the first time that she had experienced that kind of behaviour from the father. The father’s partner later retracted her complaint and distanced herself from the Apprehended Violence Order which the police sought on her behalf. But it does seem that the father was probably greatly antagonised by the searching of his property and the removal of the items referred to.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

[9] Exhibit 6, NSW Police records, ref M5.2

1. These are very young boys, four and two. They are vulnerable and need the care and protection of their mother. They also have the benefit of caring relationships with the maternal grandparents.

2. I note that the mother was not opposed to the relationship between other paternal family members, particularly the paternal grandmother and the paternal aunt and uncle, who had cared for the father’s older child when he was in jail, but was concerned about the children coming in contact with the father in that way.

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

1. There are many allegations by the mother of misconduct by the father, violent misconduct, particularised. The mother’s allegations have not been tested, but the father chose not to take up that course, so I accept her evidence. It is corroborated by the maternal grandmother to some extent.

2. The mother began her new relationship about 12 months ago, so towards the end of 2016.

CONCLUSION

1. Having considered all those factors, I come to the conclusion that the father acknowledged quite properly when he consented to interim orders in September 2016, that the mother had the capacity to care for the children and meet their needs. He did so by conceding that the children should live with her and that she could have sole parental responsibility.

2. The mother had included a notation to the orders she proposed that there could be contact between the father’s older child, who lives with the father, and her children and that that would be arranged between the older child’s mother and herself. Counsel for the mother withdrew the notation, and the Senior Family Consultant gave her clear opinion that, although there might be some enjoyable benefit for the three children for that contact to take place, it would be risky, and in her view, the father may elicit information through D about where the children were living, what they were doing and who the mother was living with. The Senior Family Consultant warned against it.

3. I have not taken the course of making an order that the children not be brought in contact with D. D is an innocent in this, and such orders are capable of misinterpretation. But it is a matter for the mother whether she allows the subject children to spend any time with their older half-brother, noting that her priority, and I accept it is, is the safety and protection of herself, the children and her partner.

4. Orders are made accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 7 November 2017.

Associate:

Date: 7 November 2017