Ginn and Mead

[2007] FamCA 717

FAMILY COURT OF AUSTRALIA

GINN & MEAD [2007] FamCA 717

FAMILY LAW – CHILDREN - Terms of Settlement - Violence - Abuse

APPLICANT: MR GINN

RESPONDENT: MS MEAD

FILE NUMBER: NCF 579 of 2005

DATE DELIVERED: 20 June 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATES: 19 & 20 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bates

SOLICITOR FOR THE APPLICANT: Kinnear & Co

COUNSEL FOR THE RESPONDENT: Mr Sundstrom

SOLICITOR FOR THE RESPONDENT: Ms Denise Clark

INDEPENDENT LAWYER FOR THE CHILD’S COUNSEL: Mr Cook

INDEPENDENT LAWYER FOR THE CHILD: Ms Callander, Legal Aid Commission

Orders

1. Orders by consent in accordance with paragraphs 1 to 16 of the Terms of Settlement set out below:

   1.        All previous parenting orders be discharged.

   2.The child M born in November, 2003 (the child) live with the mother.

   3.The child spend unsupervised time with the father as follows:

3.1From 10am until 5pm (or such other times in relation to the commencement and conclusion of the time to be spent with the father as directed by the R Contract Centre) on each alternate Saturday and the first Saturday on which the child shall spend time with the father shall be the 23 June 2007.

4The time that the child spends time and communicates with the father must be implemented by:

4.1The mother delivering the child to the R Contact Centre 15 minutes before the commencement time that the child spends with the father, immediately leaving the building and the vicinity and remaining away from the vicinity until 15 minutes after the end of the time that the child spends time with and communicates with the father.

4.2The father not attending the building or its vicinity until the commencement of the time that the child is to spend with and communicate with the father and leaving the building at the conclusion of the time that child spends with and communicates with the father.

4.3The mother collecting the child from the R Contact Centre 15 minutes after the end of the time that the child spends with and communicates with the father.

5.Each party must:

5.1Comply with any appointments made by the R Contact Centre for the purpose of changeovers and conduct within the contact centre.

5.2Comply with all reasonable rules of the R Contact Centre.

5.3Comply with all reasonable requests or directions of the staff of the the R Contact Centre; and

5.4On each occasion of changeover pay one half of the total fee as the R Contact Centre requires to be paid to facilitate the changeover.

5.5For the purpose of these orders the R Contact Centre shall mean the service provided by Relationship's Australia and which has operated from H and shall apply to any other location from which that service may in the future temporarily or otherwise operate from.

6.In the event that the R Contact Centre is closed or unavailable on any day that a changeover is scheduled to occur the mother is to deliver the child to the father in the foyer of the Police Station located at W at the commencement of the time the child is to spend with and communicate with the father and the father is to return the child to the mother at the same location at the conclusion of the time the child spends with and communicates with the father.

7.The mother shall continue to attend N Family Support Service for as long as that organisation believes necessary.

8.The mother shall continue to attend L Drug and Alcohol Service for as long as the counsellor at that service recommends.

9.The mother shall ensure the child attends pre-school or day care on at least one day per week until he commences full time schooling.

10.The father attend drug and alcohol counselling at S community Health for as long as the counsellor at that service recommends.

11.Each parent shall undertake a parenting course as recommended or approved by the Director of Child Dispute Services at the Family Court at Newcastle and contact the Director of Child Dispute Services at Newcastle for a recommendation or approval within 7 days of the date of these orders.

12.The Independent Children's Lawyer provide the Department of Community Services with a copy of these orders and have leave to provide the Department of Community Services with a copy of the Family Reports prepared by Ms T.

13.The mother sign all consents submitted by the father to enable the child's school to provide to the father on a regular basis and at his expense copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the child.

14.The mother give any necessary approval to any treating medical practitioner or other health professional to enable such person(s) to provide to the father any information relevant to the child's treatment and/or state of health.

15.The father is restrained from:

(a) taking the child to the township of S or its environs

(b) taking the child from the city of N and its environs, and/ or P and its environs

(c) permitting any of the father's associates or former associates being in the presence of the child other than

·    Members of the father's family

·    The father's former wife

·    The father's friend Mr G and his immediate family

16.The mother has sole parental responsibility for the child, but shall communicate with the father in writing in relation to the following matters:

(a) Education limited to issues in relation to the school or schools which the child may in future attend

(b) Serious medical issues

(c) Religious or spiritual issues.”

1. Any outstanding applications of the parties are dismissed;

2. The Registry Manager may return any documents produced on subpoena;

3. The Court notes that the father's solicitors will engross the orders. 

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as GINN & MEAD .

FAMILY COURT OF AUSTRALIA AT  

FILE NUMBER: NCF 579  of 2005

MR GINN

Applicant

And

MS MEAD

Respondent

REASONS FOR JUDGMENT

1. I want to make a few comments because there are some very serious allegations made in these proceedings and I am not in a position in making these consent orders to make any concluded decision as to the truth or falsity of many of those. 

2. There are some quite serious allegations made against the father and of those, on the material I have read already which is untested by cross-examination, I would be satisfied that he is a man who uses abuse in his dealings with other people. 

3. Twenty years ago the Courts had a very different approach to the question of abuse and in many cases before the Courts violence and other abusive behaviour was regarded as situational, as somehow attributable to a conflict between people and/or attributable to some provocation or attributable to someone's use of alcohol or drugs or some other thing.  That is not so much the attitude of the Courts these days. 

4. There are many people who drink alcohol.  Only some of them use abuse when they are using alcohol.  Many people use drugs.  Only some of them use abuse when they are using drugs.  There are many people who get angry, who get provoked.  Only a very few of them use abuse in their dealings in those situations.

5. Abuse has also been accepted by the Courts to be a multifaceted thing.  The reference to domestic violence misleads people.  It is not necessarily about violence.  In some situations you may have to use a little bit of violence, but you can then exert abusive behaviour without violence.  Controlling behaviour is one of those situations where you might only have to hit someone once or you might only have to threaten them seriously enough that you never have to touch them after that and you get what you want and control their behaviour and inhibit what they want to do.  You can inhibit their freedom and manipulate them the way you want to.

6. The facets of abuse include controlling behaviour.  It can be financial.  It can be emotional.  It may be verbal.  It can be in all sorts of forms, name calling, put downs, threats, and other types of verbal abuse such as swearing and general intimidation.  Abusive behaviour includes malicious damage to people's property.  Usually the victim also recognises the potential that the violence might be to their person as well.  They are intimidated by the fact of damage to their property. 

7. And abusive behaviour includes physical violence. 

8. The Courts have now recognised that some people use abuse regularly and almost all of the community do not.  Most of the community rarely use abuse and many not at all.

9. Abuse is now generally not attributed by the Courts to the victims, where in some situations in the past it was, by use of the expression "provocation" or so forth.  Now in such situations it is generally attributed to the perpetrators.  And it is not now the attitude of the Courts to regularly attribute abuse to stress, alcohol use, drug use or provocation but to the attitudes and behaviour of the perpetrator.  It is a behaviour problem, just the same as alcoholism or other sorts of behaviour problems that people have. 

10. In this Court the significance of abusive behaviour is not just about the relationships that the perpetrator has with other people.  The most significant aspect of it is the effect on children, children who are exposed to abusive behaviour, particularly by a parent.  I do not mean only abusive behaviour directed at the child, because that again seems to suggest that one is looking at abusive behaviour as somehow an attribute of the victim; not of the perpetrator.  It is exposure of the child to behaviour by an adult, often a parent, that is abusive towards other people, who may or may not include the child. 

11. The effects of that on the child can include physical injury.  They can include also emotional effects on which most of the community seem to place little store, on but which are very serious.  A child who is witnessing abusive behaviour can become insecure, apprehensive, fearful, or intimidated.  The child can become hypervigilant where the child is alert all the time to be careful about how he behaves and what he says in case he provokes the perpetrator, or as to how another person (sometimes a parent) behaves in case that person provokes the perpetrator.  And a child can live in terror. 

12. One effect of those emotions is to inhibit the emotional development of the child.  Particularly, it inhibits the development of self-confidence and inhibits the development of self-esteem.  That is extremely damaging to the child's social and educational development. 

13. There is a third area of damage that a child can suffer by being exposed to that sort of behaviour in the household, and it is the most serious of all.  You two parties are the main role models for your son and if he is exposed to one of you using abuse in your dealings with others then he may learn to use abuse in his dealings with others.  The consequence is a social curse.  That sort of behaviour will cause him serious difficulties in forming and in keeping close relationships with anybody.  It will bring him into conflict with others.  With some people with whom he has no relationships he will find his behaviour will stimulate serious conflict.  It will probably lead to him being involved with police and also lead to criminal proceedings, criminal convictions and then subsequent penalties.  Socially it will put him in a position where he is not liked and respected as he might otherwise have been.  He may be socially isolated. 

14. Mr Ginn, I think you should look very carefully at the recommendation of Ms T in her report because what she was recommending for your son in the last report was only several hours of contact at a time with you and on only six to 12 occasions per annum.  You ought to look at it in the context that she expressed some confidence about the safety of your son.  But if in the future a Court is satisfied that your son's time with you involves exposure to abusive behaviour, then I am confident that the Court would not allow unsupervised contact.  And if contact is to be supervised, then the scarcity and expense of suitable supervision may mean it would only occur for three to six occasions per annum and for several hours only.

15. If you care to make inquiries of the R Centre you will find that supervised contact, as far as they are concerned, is usually only done on a temporary basis.  It is done for the purposes of allowing people to develop a better relationship with the child so that the child can then resume unsupervised contact, but only if the child is safe. 

16. If the Court is not satisfied that M is safe from exposure to abusive behaviour, then the contact will have to be supervised and then you will find it is very difficult to get a supervisor.  It usually involves the supervisor willing to be a supervisor for only a few hours and then only three to six occasions per annum.

17. Ms Mead, one might have sympathy with your own story, but you also have a responsibility as a parent to your son.  If the Court was to accept your evidence, you have in your time with the father allowed your son to reside in a household and in that way accommodated exposure of yourself and the child to abusive behaviour by the father.  Your responsibility as a parent is quite clear.  That is to ensure that your son is safe.  That requires your son not be exposed to inappropriate behaviour like that.

18. There is some fairly startling recent research that shows that even a baby who is in a household where there is violence is very seriously affected by it.  That research shows that the development of the child's brain is affected and it is permanent damage.  The growth of the brain is retarded at a critical stage and it results in long term damage to the child. 

19. If in the future it transpires that the child’s contact with his father involves exposure to abusive behaviour by his father, then you have a responsibility and an obligation to stop that contact.  And that might involve you having to contact the Department of Community Services and seek their support.  They are responsible for the welfare of children.  Or, it may involve you having to come to Court to make an application to stop the unsupervised contact in order to protect your son.  He is three and a half.  He does not know the effects of these things.  He will be soaking it up if it happens and he will be adjusting the way he behaves and his safety, emotional welfare and whole life could be very adversely affected by it. 

I certify that the preceding seventeen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  19 July 2007