Heyden & Lester (No 2)
[2022] FedCFamC2F 1394
Federal Circuit and Family Court of Australia
(DIVISION 2)
Heyden & Lester (No 2) [2022] FedCFamC2F 1394
File number(s): MLC 14204 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 17 October 2022 Catchwords: FAMILY LAW – parenting – court child expert flags high risk including risk of fatality due to father’s family violence, drug use, criminal recidivism and lack of insight – father failed to address risk issues in his evidence – father legally represented throughout proceedings – oral application for change of surname
PRACTICE AND PROCEDURE – father failed to appear – use of proceedings to continue coercive controlling violence – need to protect mother and child from further violence – father is required to seek leave to commence further proceedings
Legislation: Family Law Act1975 (Cth), Pt VII, Div 12A, ss 4AB, 64B(2)(g), 102NA Cases cited: Isles & Nelissen [2022] FedCFam1A 97
Oberlin & Infeld [2021] FamCAFC 66
Heyden & Lester [2021] FedCFamC2F 447
Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles (4th edition, 2016).
Australian Institute of Judicial Administration, National Domestic Family Violence Bench Book (June 2022).
Division: Division 2 Family Law Number of paragraphs: 74 Date of last submission/s: 3 October 2022 Date of hearing: 29 & 30 September 2022 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: RM Commercial & Family Lawyers Counsel for the Respondent: Mr Lethlean Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Ms Elleray Solicitor for the Independent Children's Lawyer: Gordon Ainger Legal ORDERS
MLC 14204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HEYDEN
Applicant
AND: MS LESTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE HARLAND
DATE OF ORDER:
17 October 2022
THE COURT ORDERS THAT:
1.Leave is granted for the matter to proceed on an undefended basis.
2.All previous orders in these current proceedings be discharged.
3.The mother have sole parental responsibility for the child X born in 2017 (“the child”).
4.The child live with the mother.
5.The child spend no time with the father.
6.For the personal protection of the mother and the child, the Father, his servants and/or agents (including friends and family members), be and are hereby prohibited from:
(a)Approaching the mother and/or the child or remain within 5 metres of the mother and/or child;
(b)Go to or remain within 200 metres of any place where the mother and/or child lives, works or attends school;
(c)Contacting or attempting to contact the Mother and/or the child by any means;
(d)Attempting to locate, follow or keep under surveillance the Mother and/or the child;
(e)Publishing on the internet, by email, posts or other electronic communication any material about the Mother and/or the child including on social media;
7.Pursuant to section 68P of the Family Law Act 1975 (Cth), to the extent that these orders are inconsistent with the Final Intervention Order made 15 December 2021 (Case Number …) these final orders shall prevail.
8.For the purposes of section 11 of the Australian Passport Act 2005 (Cth) (“the Passport Act”) this order expressly permits the issue of a passport or travel document (within the meaning of the Passport Act) for the child upon application by the Mother and the Father’s consent not required.
9.The Mother be at liberty to provide a copy of the family report, the child impact report and a copy of these orders and reasons to the Mother and/or child’s counsellor, psychologist and/or psychiatrist who are treating the Mother and/or the child.
10.The Mother is permitted to provide a copy of these orders to:-
(a)Any school, after school care provider, or extracurricular activities provider that the child attend from time to time;
(b)Any medical practitioner and any other allied health professionals including counsellors, psychologist and/or psychiatrists treating the Mother and/or the child;
(c)Any government or non-government agency in relation to any matters concerning:-
(i)Parental responsibility;
(ii)Care of the child;
(iii)The personal protection of the child and/or the mother;
(iv)Applying for and obtaining a passport of the child.
11.Pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from making any application under Part VII of the Act in relation to the child without first making an ex-parte application seeking and obtaining leave of a Judge of the Federal Circuit and Family Court of Australia and for that purpose:
(a)the father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders;
(b)unless otherwise ordered such application is not to be served on the mother or any other person; and
(c)if possible, any such application for leave be listed before Judge Harland.
12.The Independent Children’s Lawyer has liberty to provide a copy of these orders and reasons to the Director of Victoria Legal Aid.
13.The Independent Children’s Lawyer is discharged.
AND THE COURT DIRECTS THAT:
14.Registry arrange for service on the mother in the event the Court grants leave to the father to commence proceedings NOTING THAT the mother has provided a confidential address to the Court and this address is not to be disclosed.
AND THE COURT FURTHER ORDERS THAT:
15.The child previously known as X Heyden, born in 2017, now be known as X Lester.
16.The Respondent mother be and is hereby authorised to apply to the Victorian Registry of Births, Deaths and Marriages to change the name of the child previously registered X Heyden to Y Lester.
17.The Respondent mother serve a sealed copy of this order upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them without the requirement to obtain the consent of the Applicant father.
18.The Respondent mother and Independent Children’s lawyer is to file any brief written submissions with respect to costs within 28 days of the date of these orders.
19.The Applicant father is to file any written submissions in response within 14 days after the date in order 18.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Heyden & Lester has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
Coercive and controlling violence is a significant feature of this case. For the reasons I shall explain I am satisfied that there would be an unacceptable risk if the Court permitted the father to spend time and communicate with X. The court child expert states the risks starkly in this matter, referring to a risk of fatality. There are multiple risks due to the father’s drug use, criminal recidivism and violent offences, including use of weapons and his use of coercive and controlling violence.
It is challenging to identify cases where a perpetrator is misusing proceedings to continue coercive and controlling violence of the victim-survivors early, as it can take various forms and the Court must also balance the rights of the litigants to bring applications and have them heard. A lack of merit alone does not necessarily amount to an abuse of process. Context is important. For this reason I am making orders that may seem draconian but I am satisfied that it is necessary to make such orders to protect the mother and child from systems abuse. Those orders include that the mother have sole parental responsibility for X and that X live with her and spend no time with the father. Further, due to my concerns about the father’s bona fides and the use of these proceedings to continue his coercive control of the mother and X, I will restrain the father from commencing further parenting proceedings without the leave of the Court. I am mindful that due to the father’s absence at the trial he is not on notice of this. However his lawyers were present and in my view the issue of risk outweighs the issue of procedural fairness. The effect of the order is to simply provide a buffer so that the mother is only served if he makes an application that has merit.
Background
The father was born in 1989 and is 33 years old. The mother was born in 1992 and is 30 years old. They have one child X, born in 2017, aged five.
The parties agree they had an on-off relationship from 2013 until 2018.
X last saw his father when he was about 18 months old in September 2018 when a friend of the father took X to see him in prison. The father says he has made multiple attempts to contact the mother so he could see X again but the mother refused to engage with him. In his trial affidavit the father says that post separation there has been “unfortunately some dispute” following separation.
The mother says she is afraid of the father and fears for hers and X’s safety if the father is permitted to contact her and spend even supervised time with X. The Independent Children’s Lawyer supports the mother’s position having regard to the expert evidence and tendered material in addition to the parties’ evidence.
There is a final 10-year IVO in place protecting the mother and X from the father until 15 December 2031.
What are the issues in dispute?
In his trial affidavit the father acknowledges his criminal history may cause the Court some concern but says he has turned his life around. He makes this statement without identifying the concerns and how he has addressed them. He denies ever being a risk to X and says he can be a positive influence in his life. He seeks equal shared parental responsibility and seeks to spend regular time with X. He says if the mother and X are in Queensland he is willing to travel to see X and is willing to see him at a contact centre initially. The father minimises his conduct and does not meaningfully engage with the risk issues that the court child expert identified so clearly in February 2022 and again in July 2022
The mother and X moved to Queensland to an undisclosed location in September 2020. The mother says that she left her family and friends due to her fear of the father. She says that X has settled in well and is doing well in his prep year of school, he has made friends and undertakes weekly sports lessons. She says it is not safe for her or for X to have any type of relationship with the father. The Independent Children’s Lawyer supports the orders sought by the mother.
The issues I have to determine are:
(1)Should the parties have equal shared parental responsibility or should the mother have sole parental responsibility?
(a)Should the mother be able to change X’s surname?
(b)Should the mother be able to obtain a passport for X?
(2)Is there an unacceptable risk of harm to X if he comes into contact with his father? Is there any way the risk can be ameliorated?
(3)What other protective measures should be put in place?
The father was legally represented throughout the proceedings. His counsel appeared at both days of the trial. The father did not appear. I will address this later in these reasons.
The Law
Parenting proceedings are governed by Part VII of the Family Law Act1975 (Cth). X’s best interests are the paramount consideration in determining what orders I have to make. In this case family violence is a significant feature. Family violence is defined broadly in s4AB recognising that family violence takes many forms and may involve a range of behaviour which causes a family member to be fearful or to be coerced or controlled. Children are not merely secondary victims of family violence. They are direct victims of family violence when it occurs in the family, regardless of whether the child is in another room, asleep on not at home at all during a particular incident.
Our understanding of family violence and the long term devastating impacts it can have on victim-survivors and children has improved significantly in recently years. There are an increasing number of resources available to the courts and community to assist in addressing this challenging issue. These resources include the Family Violence Best Practice Principles[1] published by the Family Court of Australia and the Federal Circuit Court of Australia and the National Domestic Family Violence Bench Book[2].
[1]Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles (4th edition, 2016).
[2]Australian Institute of Judicial Administration, National Domestic Family Violence Bench Book (June 2022).
Coercive controlling violence is the most dangerous and insidious form of violence. It can be subtle and it can be difficult for those outside the relationship to identify. Coercive control is not incident-based but rather is a pattern of behaviour which needs to be seen in the context of the individual relationship. It does not need to involve physical violence. People engaging in coercive controlling violence may use court proceedings to continue their coercive control in various ways, including by drawing out proceedings.
As identified by the court child expert, a person who engages in coercive and controlling behaviour is also likely to have significant parenting deficits. Using violence is a poor parenting choice. The court child expert noted that parents who use violence may also have a limited capacity to distinguish a child’s needs from their own and to tolerate challenging behaviour and make use of inappropriate discipline methods. The effects of family violence can also compromise the parenting capacity of the victim-survivor. In such circumstances they need to be supported to recover and improve their parenting capacity.
Division 12A of Part VII of the Act governs child related proceedings. The Court must exercise it powers and conduct child related proceedings in such a way as to safeguard children and parties from family violence.
Children have the right to a meaningful relationship with both parents if it is safe for them. X does not have a meaningful relationship with his father. The court child expert observed in her report that if X has memories of his father, they are likely to be traumatic. She noted that children exposed to family violence often experience problematic emotions and behaviours, including anxiety, fear, depression and anger. She also noted that children exposed to family violence are at greater risk of developing emotional and/or behavioural difficulties, which can impact on their relationships with one or both of their parents and their ability to resolve conflict.
The father has not demonstrated that he understands the responsibilities of parenthood and that he has the parenting capacity to be able to provide for X’s emotional, intellectual and physical needs. The mother has demonstrated this, moving away from friends and family and re-establishing a safe environment for herself and X.
Parental responsibility
The presumption that it is in X’s best interests for his parents to exercise equal shared parental responsibility in this case is rebutted because of the father’s family violence. The mother has always been X’s primary carer. The father denigrates the mother in much of his material and says she is a liar and that he wants nothing to do with her. The father acknowledged that he did not have a good relationship with the mother but he did not see how that was relevant to X and to he and the mother exercising equal shared parental responsibility. He further said that he was in a new relationship and had completed a men’s behaviour change program and anger management course .The father provided no details as to what courses he completed and when. More importantly he does not give any indication that he learnt anything from those courses. It is also apparent from his criminal record that he has been placed on numerous correction orders requiring him to undergo rehabilitation and treatment dating back to 2009 with little effect.
I accept the mother’s submission that even requiring her to keep the father informed of decisions she makes would place her and X at risk because the father might find out where the mother and X are living. It would give the father an opportunity to continue his coercive control. I am satisfied that it is in X’s best interests for the mother to exercise sole parental responsibility for X.
Arguably given the mother has sole parental responsibility for X without any restriction, she should not require separate orders with respect to change of name and obtaining a passport for X without the father’s consent, as these fall within the scope of the type of decisions a parent makes for their child’s long term care welfare and development. However in practice, registries of Births, Deaths and Marriages and the Australian Passport Office often require specific orders.
The mother included an order enabling her to obtain a passport for X without the Fathers consent. In her minute of orders sought, she did not address changing X’s surname. At the end of the trial counsel made an oral application that the mother be able to change X’s name. I directed that the mother and Independent Children’s Lawyer file brief submissions on that point. The mother’s counsel promptly filed brief submissions addressing the relevant authorities. The Independent Children’s Lawyer endorsed those submissions. I accept those submissions and do not propose to repeat them here.
As I am making orders which provide for the father to have no time or communication with X as X gets older, it is likely to cause him some confusion as to why his surname is different to his mother’s if the mother is unable to change X's surname. As X has not seen his father since he was 18 months old, he may have little or no memory of him, whereas he is strongly connected to his mother and the change of surname would reflect the reality of his family identity. Furthermore, given the extent of the family violence and trauma experienced by the mother and X having to continue to use that surname, it may well be triggering for the mother and it is important that her role as X’s sole parent and protector be enhanced.
X is only five years old and there may well be opportunities during his childhood to travel overseas. The mother should be able to obtain a passport without the father’s consent and without having to make a separate application to the court. I am satisfied that it is in X’s best interests to make the orders the mother seeks with respect to X’s passport and change of name.
is there an unacceptable risk?
Recently the Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. There is ample evidence of the father’s criminal history and the types of offending he has engaged in over a period of many years. Those offences include assaults, threats to kill, offences, with weapons, drug possession, and drug trafficking and breaches of family violence intervention orders. There is also evidence of the family violence the father has committed against the mother and X as well as others, evidence of his repeat offending, and his failure to address and engage in the risks identified in the expert reports.
Both the child impact report dated 10 February 2022 and the family report dated 21 July 2022 are troubling. At the time of the first report the mother had not yet filed material. The court child expert who prepared both reports observed in both that the mother described family violence perpetrated by the father against her and X in great detail and described her fear of him. In the child impact report, the mother described the father exploiting her love of her dogs and threatening to harm and kill them and her fear that he would do the same to X to punish her. The mother’s narrative to the court child expert is consistent with her trial affidavit where she describes the violence she and X suffered at the hands of the father.
In contrast the father did not provide an extensive account of the relationship and repeatedly denied any family violence taking place in front of X. The court child expert noted that whilst he disclosed his criminal history, he gave limited responses. This is consistent with his affidavit evidence.
When the court child expert challenged the father about his alleged role as a perpetrator of family violence, his responses deflected any personal responsibility, and he claimed to have “no clue” as to how the intervention orders listing him as a respondent and the mother and X, as protected persons came about. He denied that the weapons charges had any relevance and when challenged about the pattern and history of his offences in the police records, he claimed that the police and the court actioned those at the mother’s request. He denied ever physically assaulting the mother and claimed that he only pushed her in self-defence. He also denied the allegations the maternal grandmother made against him for which he has been charged. The father’s evidence is not credible and is contradicted by his criminal record.
I will set out the following paragraphs from the CIR in full paragraphs 17, 23, and paragraphs 26 to 29.
Police material on the Court File is reflective of a pattern and history of family violence incidents in which Mr Heyden is the respondent. The various affected family members include Ms Lester, her mother, Mr Heyden’s current partner and his own mother. Mr Heyden has further been charged for offences relating to weapons and assaults. This material is concerning and suggestive of the risk profile characterising this matter. Whilst Mr Heyden confirmed completion of treatment programs whilst subject to a Community Corrections Order, his pattern of recidivist offending suggests that these did not motivate the desired behavioural changes.
Consideration of spend time warrants great caution. It is pertinent that Mr Heyden demonstrate insight into his previous use of violence and the impact of such on a young child; abstinence; and the ability to ensure a safe and consistent presence in X’s life.
The current assessment indicates that Mr Heyden made the decision to engage in illicit substance use and commit violence when he lived together with Ms Lester and X. His presentation at interview was of substantial concern, whereby he provided a minimised account of any violence in the relationship, attributing responsibility to both parties, and identifying Ms Lester as the primary aggressor. He described his use of violence and illicit drugs as historical behaviours, prior to X’s birth. This is not supported by his criminal history. Mr Heyden therefore did not present as a reliable historian and his account indicated efforts to portray himself favourably.
This matter is characterised by a significant family violence risk. Ms Lester has relocated to Queensland to escape ongoing abuse perpetrated by Mr Heyden. She reports having established safety and stability for X, and there is no information available to the writer at the time of assessment to suggest otherwise. As such the court may consider a cautious approach so as to ensure that the current proceedings do not introduce an element of risk that is destabilizing to mother and child, especially in light of Ms Lester being X’s stable and ongoing primary parent.
The information available at this time informs the assessment that the court may consider communication and spend time with Mr Heyden be reserved, and that further consideration be given to the issue of parental responsibility.
Mr Heyden’s criminal history is suggestive of recidivist offending and the content of his interview reflects minimal insight and deflection of personal responsibility. These attributes, in the context of the family violence disclosed, are indicative of high risk. Ms Lester has successfully performed the role of a stable, protective primary parent to X and any future orders should reflect her capacity to continue to be supported in this role. There is nothing to suggest that there should be any change to X’s primary parenting arrangements.
As is clear from that preliminary assessment, the court child expert assessed that there was a high risk of family violence and should there be a reintroduction of the father to X, a cautious approach should be taken as there is a need to protect the mother’s role as X’s stable and primary parent. Whilst professionally supervised time at a contact centre would provide some safeguards, it would not eliminate the risk. Any reintroduction would likely be daunting for the mother and cause distress and anxiety, which may impact on the mother’s sense of stability and security. This could in turn impact on her ability to assure X of his own sense of safety and stability. She would need ongoing family violence supports which she had at that time not engaged with. The court child expert also observed that X was 18 months old when he last saw the father and that if he has memories of his father, it would be associated with danger and insecurity. The fact that the father showed minimal insight and deflected personal responsibility for his recidivist offending heightens the risk.
This preliminary assessment gave stark warnings to the father, yet far from the father engaging with and addressing those risks, he continued to deflect and minimise any personal responsibility, and did not engage with those risk concerns in either the family report interview or his trial affidavit.
It is significant that at the family report interview, the father presented his relationship with the mother as being characterised by mutual arguing. The only concern the father expressed about X’s well-being was growing up without his father. The father confirmed that his proposal remained that the parties have equal shared parental responsibility and that he have time on alternate weekends and one day each week. It is apparent from the father’s affidavit and proposal that he is not convinced that the mother and X moved interstate.
The father admitted verbal abuse but said both parties yelled and screamed at each other, and acknowledged that on one occasion that occurred in front of X with X crying, and acknowledged pushing and grabbing the mother’s shirt on one occasion after she threw a battery at him, but said that the mother had no reason to fear him and minimalised his criminal convictions. He also claimed the weapons were just lying around and had not been used to threaten the mother. He claimed that he pled guilty to avoid legal fees and that the incident was much less serious than what had been recorded.
The court child expert described the mother as being conflicted at times as to how best to articulate her concerns without escalating risk to herself and X, which she noted was common for family violence survivors. She noted that the mother’s account which is detailed in her trial affidavit provides a narrative of a protracted pattern of family violence. The mother told the court child expert that she used to believe it was her destiny to be killed by the father and she was fearful of future relationships. Her comments about someone “getting angry and smashing her things” suggested that she had normalised those behaviours that she said were typical of the father. The mother also said her parents were afraid of retribution from the father.
The court child expert recorded that the mother’s narrative indicated that she might be suffering from some trauma and mental health difficulties. She had not received any therapeutic support. The mother acknowledged that there had been some good times between X and his father, but said they were infrequent and the mother expressed fears for herself and her family, and she believes that the father holds a grudge and has capacity to hurt “anything that I love”. The mother pointed to her risk concerns as being the reasons for her proposals for her to exercise sole parental responsibility and for the father to have no time but also acknowledged some implications of her proposal and said that the associates of the father continued to try and contact her via social media, and she expressed fear that if the father does not get to spend time with X, he may kill her. The mother expressed fear that any communication with the father such as keeping him informed about X’s development would place them both at risk as currently the father does not know where the mother lives and works and where X goes to school, which enhances their safety.
In her trial affidavit, the mother refers to the father’s extensive criminal history, drug use and pending charges and says she does not believe it is safe for X to have a relationship with his father. The mother gives detailed evidence of a disturbing pattern of controlling and coercive violence that which involved threatening to kill her and X, threatening to kill her pets and mistreating them, isolating her, instances of verbal and emotional abuse, physical assaults and strangulation, and recurrent threats with firearms and weapons. She says the father often had weapons with him and threatened her with a gun. He also threatened to kill her mother. The mother says the father stalked her and often accused her of having affairs. The mother says the father’s abusive and threatening behaviour continued after they separated. The mother says that the father was in jail in 2018 when they separated and was released in about August 2019 and started stalking and harassing her, including one incident where he followed the mother’s car into town and waited for her outside a shop before harassing her.
The father whilst having the benefit of legal representation had the family report for some months before preparing his trial affidavit but fails to engage with the risk issues identified in any meaningful way. This only serves to heighten the Court’s concerns.
The father paints a different picture in his trial affidavit and minimises his criminal record and denies that he is any risk to X. In contrast to the mother’s detailed evidence, the father gives a vague and inconsistent history and fails to engage with the serious issues of risk identified by the court child expert. It is striking that in his affidavit he acknowledges that the court “may have concerns” about his criminal history but then simply says he has turned his life around. He does not attempt to demonstrate this at all. To the contrary, he does not take personal responsibility for his actions and seeks to deflect and blame the mother, going so far as to suggest that the mother introduced him to drugs. The mother denies this and says she started to use drugs when in the relationship with the father.
Considering the evidence in this case, I am satisfied that the father engaged in coercive and controlling violence during the relationship and continues to do so. I am comfortably satisfied that the father presents an unacceptable risk to X, and that given the number of and nature of those risks, those risks cannot be ameliorated by an order for professionally supervised time at a contact centre. As the father failed to appear at trial, the evidence of the court child expert and the mother were unchallenged.
Is there an unacceptable risk due to the parties drug use?
Both parties acknowledged historical drug use. The court child expert noted that there was some inconsistency in what the mother told her with respect to when she stopped using drugs, having previously said she stopped in 2015 and subsequently saying she stopped when she found out she was pregnant with X. She has provided two negative hair follicle tests in accordance with the independent children’s lawyer’s requests. Her criminal history was limited to 2014 and 2015 and is not an indicator of any current risk. The mother’s criminal record is also consistent with her evidence that her drug use and involvement in criminal activities was limited to during the relationship and before X was born.
In contrast, the father in his first interview said he last used a small amount of cocaine on his birthday in 2021. At his July 2022 interview, he acknowledged that he had not complied with the Independent Children’s Lawyer’s request for a hair follicle test and instead had taken illicit substances in January 2022 at a party and said that he most recently used ice regularly in 2021 when he smoked it a couple of days a week and talked about stopping taking ice due to not being able to afford it.
When asked to reflect on the impact on X of his drug use, the father conceded that it meant he spent a fair bit of time away from X, but claims that both he and the mother were using drugs at that time. He further conceded he could have been moody and erratic when withdrawing from ice, which may have been upsetting for X. The father also insinuated that the mother is currently using drugs though he has no knowledge of her current circumstances. The father’s inconsistencies in what he told the court child expert at the first and second interview is concerning and raises a concern that he may be under reporting his drug use. His inconsistent information also serves to further highlight the serious nature of the ongoing risks. Further to this, the father failed to comply with either of the Independent Children’s Lawyer’s requests for him to undergo a hair follicle drug test. Thus, the father’s drug use remains a live and serious risk to X, should there be any reintroduction of the father to him.
Conclusions about unacceptable risk
The court child expert highlighted the seriousness of the risk given and significantly, she concludes that the totality of these behaviours reflect a heightened risk of fatality. She went on to say that whilst the father acknowledged some acts of violence and the intervention order in place, his account was less credible than the mother’s and he described mutual physical and verbal abuse. She observed that the father had limited insight and avoided personal accountability for his behaviours and was either unable or unwilling to acknowledge the impacts of his behaviours on the mother and X.
The court child expert further noted that even if the Court was to find that the father’s account was more accurate, there is still a risk to X as his account would reflect conflict instigated violence characterised by angry outbursts and arguments that may escalate to physical violence. She also referred to the secondary risks with respect to the father’s abuse of alcohol and drugs, and again the father’s inconsistent history about his drug use and his failure to undergo the hair follicle test. At the time of the report she was aware of the father’s failure to comply with the first test. Despite telling her he would do a test before the trial, the father failed to do so.
Added to this is the challenge in the viability of any spend time with arrangement between the father and X, noting the length of time since X has seen his father and the issues of distance even if the father was to have professionally supervised time. That does not eliminate the risk entirely as there is potential for the father to discover where the mother and X live, go to school and work. The other aspect of concern is the impact on the mother should there be any attempt to reintroduce the father to X, and how that may compromise her parenting capacity. The court child expert concludes that if the Court accepts the allegations of family violence such behaviours are consistent with a heightened risk of fatality. I observe that it is rare for a court child expert to state the risks so bluntly.
The tendered material
In her trial affidavit, the mother describes in detail a violent incident which occurred on 17 December 2017. The video of that incident is tendered as exhibit 1. The video shows the CCTV camera footage at the front of the house and shows the father at the beginning of the video entering the house. The rest of the clip does not show either of the parties or X, but contains distressing sounds, beginning with loud bangs and the mother begging and becoming increasingly distressed and X can also be heard screaming. As X continues to scream, the mother continues to beg the father to stop and also can be heard trying to comfort X. The recording is distressing.
The subpoenaed documents produced by the police and Department of Corrections highlights the seriousness of the risk. The records show that currently there are four intervention orders in place naming the father as the respondent. In addition to the mother and X, the father’s current partner and the maternal grandmother are protected persons under these intervention orders. The leap records also recite many instances of domestic and family violence, including violent incidents against his own mother in 2013. The leap record also includes the court application narrative of the maternal grandmother applying for an intervention order against the father in December 2021, which she refers to her living in fear and her parents also being fearful due to the father continuing to drive past their house. She also refers to past assaults and damage to her current belongings and threats he made. This heightens the risk and is indicative of the father engaging in this behaviour across a range of relationships.
The father’s criminal record is extensive dating back to 2009 where he was convicted of drug and assault charges. Part of his community corrections order he was sentenced with in 2009 included a requirement that he undergo assessment and treatment for drug and alcohol addiction, or to submit to a medical, psychological or psychiatric assessment and treatment and to undergo assessment for programs to reduce his reoffending. Clearly, any treatment and programs he may have undergone at that time had little effect given his continuing pattern of offending, which involves reckless conduct such as driving dangerously, assaults, drug use and drug trafficking, and weapons charges. Similar community corrections orders were made requiring the father to undergo assessments and treatments, with further such orders being made in 2014 with respect to further charges. The father has spent times in prison in 2011, 2014, 2015 and in 2017, when X was born. He spent a year in prison from August 2018 to August 2019 and several days in August 2020. The records also show that at times the father was disciplined for offences in prison including violent altercations, having contraband and failing a drug test.
The father was convicted of perjury. The father abandoned his appeal of that conviction. There is a further order for the father to undergo treatment and rehabilitation as part of a community corrections order in 2017. The father’s continual offending involves recklessly causing injury, assault, resisting emergency worker on duty, driving while suspended, weapons offences, damage to property, possess and trafficking of drugs. It includes convictions as late as November 2021 and he currently has criminal charges pending. His Victoria Police record court outcomes report shows it was printed on 30 May 2022 and consists of 30 pages.
I note too that the records show that in 2014, the father was caught by police with drugs in his car, which he claimed were the mother’s and not his. The mother called police and volunteered that the drugs were hers and said they had been given to her as a present and she had forgotten about them. The mother says she took responsibility for this and the weapons charges that were in fact the father’s. This too is consistent with the type of relentless controlling violence she deposes to.
As I was reading the tendered material, I identified further concerning evidence that Counsel appeared to have missed. The records from the Department of Corrections include his prison intake assessment dated 24 August 2020, noting that he was on remand for recklessly causing injury, two counts of unlawful assault and attempted aggravated burglary plus 13 others, and also recorded family violence concerns and noted the four intervention orders in place. It is troubling that at the day of arrival checklist, the father named the mother as his emergency contact, referring to her as a friend. He gave his own mobile number as her contact number and an old address that they used to live at. It is unsurprising that the interviewer noted that there was no answer from that number and simply says “Covid-19 unable to interview”. It is deeply troubling that the father would deliberately mislead prison authorities in this regard and it is unfortunate that the reference to her did not raise any concern given the intervention orders which are listed at page 245 of the tender bundle. There can be no benign explanation for the father providing this misinformation. The inference is that the father provided that misinformation in order to avoid the prison intake officer speaking to anyone who may express concerns about his conduct.
The leap records also detail an incident on 20 May 2018, where the father attended a hotel the mother and X were staying at, and attempted to go to her room. The mother also details this incident in her trial affidavit. The mother directed the hotel concierge to call the police, as she was staying at the hotel to get away from the father. The police attended the hotel and arrested the father. The police took out an intervention order against the father following this incident.
The leap records further detail a similar incident on 5 August 2020, where the father attended a motel where his former partner was living in crisis accommodation. The father attempted to gain entry to her motel room via the front door and attempted to force open a rear window, then attempted to smash the window. He then chased his former partner around the motel and proceeded to get into his vehicle and do laps around the motel complex. He was not on scene when the police arrived.
It is also concerning that the leap records refer to an incident where the mother was attending Suburb B Magistrate’s Court on 17 December 2019 when she was confronted by the father outside of court where he verbally abused her. This was only a few months after his release from prison.
Father’s non-attendance at trial
The hearing proceeded on an undefended basis as the father failed to attend the trial despite being given several opportunities.
Considerable public resources have been used in this case. Both parties and the Independent Children’s Lawyer were funded by Legal Aid Victoria. The Court funded a child impact report and a family report. There was some debate as to whether the father’s application should have passed the merits test imposed by Legal Aid. The reality is that if the father’s aid had been terminated on merits grounds the mandatory provision in s.102NA would apply. That could have delayed the trial. That would have only been to the detriment of the mother and child.
The mother moved with X to an undisclosed location in Queensland. I directed that both parties attend the hearing via teams with counsel in the courtroom.
Before the trial began the father’s counsel said he was instructed to seek an adjournment as the father was not happy with his affidavit and felt he did not understand parts of his lawyer’s advice. He wanted an opportunity to redo his affidavit. He did not withdraw instructions from his solicitor. He did not give any examples. On its face his affidavit did not appear defective. I refused the application. The father would have had an opportunity to explain any defects in cross-examination. I briefly stood the matter down.
In what appears to be convenient timing the father then claimed to have technical difficulties appearing via video-conference. Without objection I directed him to attend court in person. The father indicated through his counsel that he would do so. This was at around 11am. I stood the matter down until 2.15pm which gave the father ample time to attend either by car or public transport. At several points during the morning the father’s counsel was unable to get in touch with the father. The father did not appear at 2.15pm. I directed his counsel to text the father to say that the trial would resume at 2.45pm whether he was present or not. Again in somewhat convenient timing the father contacted his counsel and said he was still at home as he was unable to get a lift to court. He further said he had obtained another device but was having difficulty with that one as well. I had real concerns that this was a delaying tactic by the father. If the father genuinely had difficulties getting to court that afternoon he would have kept his lawyers informed about his attempts to comply with the direction to attend court. Despite my concerns about the father’s bona fides I gave him one more opportunity to attend. I adjourned the trial to 10am the next morning, again directing the father to attend in person. The father was present electronically when I made that direction. I made it clear to the father that the trial would proceed the next day regardless of his attendance.
The next morning the father was not at court at 10am. His counsel said his client contacted him the night before asking if he could attend court if he was unvaccinated and was told he could. The father’s counsel was unable to contact his client. If the father was genuinely concerned about his vaccination status he would have come into town and sought guidance from his counsel.
The father’s conduct is consistent with his using these proceedings to continue his coercive controlling violence. I have real concerns that the father’s adjournment application and then non-attendance at court were attempts by him to continue the proceedings, and that acceding to the request would be an abuse of process.
Conclusion
In the circumstances of this case, I must place greater weight on the need to protect X from physical and psychological harm due to family violence and/or abuse than the benefit of him having a meaningful relationship with his father, which he currently does not have.
I am satisfied that the risks are of such magnitude that even professionally supervised time at a contact centre would put X and his mother at an unacceptable risk. The father has not demonstrated any insight into the detrimental impacts of his abuse on the mother and X. The video recording gives just one example of X being exposed to serious violence from his father and seeing his mother terrified when he was at a vulnerable stage of development and attachment. It is not known what impact this may have on him long term. It cannot be assumed that he does not remember this incident nor can it be assumed that even if he does not remember it, that it has had no impact on him.
Despite being aware of the concerns around his drug use the father has failed to provide any evidence that he has been able to address his drug use and addiction. It is clear from the police records that the father has been using drugs and committing crimes associated with drugs since 2009 when he was 20 years old. Of course the father’s police record reflects occasions where he has been caught and not the number of occasions where he has used drugs. What is significant too is that the father has been the subject of numerous community correction orders over the years including for example in 2009, 2013, 2014 and 2017.
The father has given inconsistent evidence to the court child expert with respect to his drug use which raises concerns that he is likely to be continuing to use drugs regularly and possibly at a higher level than what he has conceded. His failure to provide any hair follicle tests provide that I can only draw an inference that this is because the tests would be positive. Chronic use of illicit substances negatively impacts on parenting capacity and the ability to keep a child safe.
Quite apart from the father’s drug use, his criminal offending dating back many years involving repeated offences raises real concerns about the father’s capacity to be a safe parent for X. As acknowledged by the court child expert, the risk is greater because of the repeated patterns of offending over a longer period of time and whilst the father claims to have completed a men’s behaviour change course, he provides no indication that he gained any benefit or understanding from that course and it certainly seems that despite the many corrections orders requiring him to undergo counselling and rehabilitation they appear to have had no effect.
The risk is also magnified by the fact that his violent behaviour is across multiple relationships. The father’s unpredictability particularly when using drugs is also troubling. The father has engaged in at least two instances recorded in the police records of similar stalking and controlling behaviour towards former partners is also concerning.
It is now understood that violent offenders may use the court proceedings themselves to continue the pattern of coercive controlling behaviour. As I have noted before, the father has been legally represented throughout these proceedings. I have real concerns about the bona fides of the father’s excuses for failing to attend the final hearing after his unsuccessful adjournment attempt. Given the expert evidence and the tainted evidence that I have referred to, an adjournment would not have served any purpose other than to keep the mother involved in court proceedings.
The mother acknowledged there had been some positive interactions between the father and X during the relationship. The court child expert also identified some benefits to X having a relationship with his father, including a sense of his self-image and belonging, but this is far outweighed by the risks to X of being exposed to further family violence as well as the likely inconsistencies and emotional unavailability due to his ongoing drug use.
This is not a case where the vexatious proceedings powers either under 45A or section 102QA of the Act apply and no one has raised it. However the Court also has power under s 64B(2)(g) to make orders that place conditions upon a party bringing further proceedings.[3] I am satisfied that in order for the Court to meet its obligations to ensure that it actively manages and controls proceedings to protect children and parties from family violence that such an order is necessary.
[3] See for example, Oberlin & Infeld [2021] FamCAFC 66
I will order that in the event the father seeks to bring further parenting proceedings, he must first bring an ex parte application seeking leave to do so. I am not making any other conditions such as preventing him from filing an application for a certain period of time or demonstrating that he is taking particular action. The effect of the order is to provide the mother and child with a further buffer such that the mother will only be served with an application if the court is satisfied that it is not an abuse of process and attempt at systems abuse. I acknowledged that as the father failed to attend court he was not given notice of my intention to make such an order, however his counsel was in court for the entirety of the trial including when I raised making such an order. I consider that the benefit to X of his mother not being distressed by being served with and having to respond to unmeritorious applications outweighs the prejudice to the father in having a small delay in any meritorious applications he may bring progressing.
I also acknowledge that previously there was great difficulty in serving the mother with the proceedings which resulted in her arrest. I repeat my earlier reasons with respect to that issue.[4] The mother says that she was not aware of the proceedings until she was arrested and says her father did not tell her about the attempted service. Given the mother’s and the maternal grandparents’ experience of the fathers violent conduct it is understandable that her father might have done this thinking he was being protective. The mother has provided an address to the Court that will be kept confidential that may be used to bring further proceedings to her attention should the father be permitted to proceed. In order to protect the confidentiality of that address and to address any potential concerns about the father using others to try and find the mother, I will order that in the event the father is granted leave to commence further proceedings the registry manager will arrange service on the mother. I am mindful of the need to balance issues of procedural fairness but in this case the safety concerns are such that it is necessary to put these types of conditions in place in order to provide some protection to the mother and X. In this regard only I point to the unchallenged evidence of the court child expert as to the risk factors in this case being so serious as to include the risk of fatality and significantly she formed this view without having all of the material that has been tendered at trial.
[4] Heyden & Lester [2021] FedCFamC2F 447
At the end of the first day of the trial both the mother and the Independent Children’s Lawyer sought that their costs be reserved and noted they are both funded by legal aid and that the father is also funded by legal aid. Whilst there was some discussions about the merits of the father’s grant having continued to trial, in my view that was a sensible course given that the mandatory provisions of s102NA would have applied and if his grant of legal aid had been withdrawn this could have led to further delays. If the mother or the Independent Children’s Lawyer seek to make an application that the father pay their costs I will direct that they file brief written submissions within 28 days and the father shall make any submissions in response 14 days thereafter and I will then determine the matter in chambers.
The mother sought that I make injunctions in terms that are consistent with the existing intervention order. I am satisfied that it is just and convenient to do so and have checked against the existing intervention order. The mother also seeks orders enabling her to provide copies of these orders and reasons to various professionals and authorities and I am satisfied that the order should be made in the terms she seeks.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 17 October 2022
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