Hobb & Arlington

[2021] FCCA 1976

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hobb & Arlington [2021] FCCA 1976

File number(s):	ADC 4959 of 2018
Judgment of:	JUDGE KARI
Date of judgment:	18 August 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – child aged 3 years – mother’s application for no time spending with father, 69ZW order and injunctive orders – where father seeks supervised time at Children’s Contact Centre – injunctive orders granted – application and response dismissed – matter listed to Trial Callover
Number of paragraphs:	62
Date of last submission/s:	18 August 2021
Date of hearing:	18 August 2021
Place:	Adelaide
Solicitor for the First Applicant:	Mr Wabnitz Daniel John Lawyers
Solicitor for the First Respondent:	Fjs Lawyers
Counsel for the First Respondent:	Mr Roberts
Solicitor for the Independent Children's Lawyer:	Legal Services Commission
Counsel for the Independent Children's Lawyer:	Mr Lewis

ORDERS

ADC 4959 of 2018

BETWEEN:

MR HOBB

Applicant

AND:

MS ARLINGTON

Respondent

ORDER MADE BY:

JUDGE KARI

DATE OF ORDER:

18 AUGUST 2021

UPON NOTING:

A.That in the event that the matter has been given a Trial Callover date the parties are at liberty to request that the mention date provided for in these orders be vacated.

THE COURT ORDERS:

1.That the Application in a Case initially filed by the mother on 30 April 2021 as amended on 25 June 2021 be dismissed.

2.That the Response to an Application in a Case filed by the father on 31 May 2021 be dismissed.

3.That the father be restrained and an injunction is granted restraining him from:

(a)Attending at the childcare and/or any other education facility attended by the child;

(b)Approaching within 50 metres of the child; and

(c)Removing the child from the care of the mother.

4.That the proceedings be listed to a Trial Callover on a date to be fixed.

5.That all interim applications otherwise be dismissed.

6.That the proceedings be adjourned for Mention only to 10 November 2021 at 10.30am such hearing to be conducted by telephone conference through AAPT Global Meet.

To join the telephone conference, please follow the following steps:

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b.Enter the guest passcode: 871 587 1863 followed by #

The telephone conference will not commence until the Court joins the conference. If you dial into the conference before the Court joins, you will hear hold music. If you are experiencing connectivity issues, please hang up and dial the above number and passcode again.

The telephone conference is a virtual courtroom and you must adhere to all Court protocols as if you were in physical attendance at the Court and in particular:

a.You must place your telephone on mute until your matter is called on;

b.You must not place your phone on hold – this will play hold music into the Court room;

c.You must not have your phone on speaker function – this interferes with the Court recording system.

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 under the pseudonym Hobb & Arlington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE KARI

1. This matter comes before me today in relation to a young child, X, born in 2018.

2. It is an agreed position between the parties that X has had effectively no relationship with the father and that he has lived with the mother for the duration of his short life.  It is the mother’s position the parties separated on a final basis prior to X’s birth some time in or around November of 2017, the parties having commenced cohabitation in 2015.

3. The proceedings have been before the Court since the filing by the father of an Initiating Application on 29 November 2018.  That application took some time to effectively be dealt with, in circumstances where the father did not know where the mother was located, and a location order was made on 11 February 2019, which ultimately facilitated the mother’s participation in these proceedings.

4. On 17 July 2019 I made orders for parentage testing and for X to live with the mother.  I also directed and made orders that the parties enrol in a children’s contact service.  One of the reasons that I made that order, presumably at the request of the parties, but in particular at the request of the father, is because the orders that he sought in his initiating application, while crafted that he spend time with the child Monday, Wednesday and Friday during the day, I would have to assume that those orders were made because of matters raised at the mother’s end regarding risk factors.

5. Leaving that to one side, parentage testing was undertaken, and by 12 December 2019 I noted that the father’s parentage of X had been confirmed pursuant to the testing that had been ordered.

6. On 12 March 2020 I made a further order that the parties enrol in the supervised contact service at the B Children’s Contact Service.  Again, I made that order by consent.  The order was crafted a little unusually, in the sense that the order stipulated that if the parties were assessed as being suitable for the use of the service, then the father should commence spending time with X for no more than two hours each fortnight, and that after six visits a report issue.

7. That time-spending did not effectively get off the ground for a very extended period of time.  That was as a consequence of delays that impacted the service as a result of the pandemic. 

8. Ultimately, when the matter came before me on 12 October 2020, I was informed that the time would finally be able to commence in November of 2020.  That was a very considerable delay.

9. When the matter next came before me on 9 March 2021, I was advised by the father’s solicitor that the time at the service had been terminated after two visits because of an alleged threat made by the father towards the mother’s partner.  The father’s solicitor also indicated to me at that hearing and I made a notation, that the service would be willing to resume supervising the father’s time-spending with X if he engaged in counselling.

10. As a consequence, on that day I made orders appointing an Independent Children’s Lawyer, an order requiring the father to file the report from the children’s contact service, and I made orders providing for both parents to file whatever Application in a Case they considered appropriate, and for the matter to come back for mention on 1 June 2020.

11. The father ultimately complied late with my order for the filing of the reports from the contact service.  As it turned out, it appears, on my reading of the affidavit filed by the father on 8 April 2021, there was only one visit that took place at the children’s contact service, and that was a visit that took place on 29 November 2020.

12. The report that was prepared in relation to that visit is of some length.  The report details the interactions that took place in the lead-up to and during the supervised time-spending period between the father and X.  Significantly, the report sheds some light on why the service considered it appropriate to terminate the provision of a service to this family.  That came about in circumstances where Mr Hobb, being the father stated:

    “that X had said the word Dad during the visit. Mr Hobb said that he is X’s only father and that if he found out C (Ms Arlington’s partner) was being called Dad or was on site during the visits he would “smash his fucking face in.” Mr Hobb said that he should be the only person called Dad and that out of all the men in X’s life it should be him that gets the most time with him. Mr Hobb’s facial expression changed and he appeared angry and clenched his fists together. Mr Hobb went on to say that he was sure that the supervisor was about to approach territory that he was not liking around the word “Dad” and that the supervisor might say something that angered him. The supervisor said that this was true so they would leave it for now. Mr Hobb expressed that if C was on site or in the car park and he saw him he would leave.”

13. The report details more of the conversation between the father and the contact service worker.

14. Ultimately, that one occasion of time-spending on 29 November 2020 appears to be the only occasion of time-spending that occurred between the father and X.

15. As a consequence of the orders that I made on 9 March 2021, the mother filed an Application in a Case on 3 May 2021.  In that application she sought orders that X live with her, that she have sole parental responsibility, that orders be made pursuant to section 69ZW directed to South Australia Police in relation to the father, and that there be various injunctive orders effectively preventing the father from coming within a radius or vicinity proximate to the mother and/or the child.

16. In filing that application, the mother filed an affidavit from both herself and her solicitor.  The affidavit filed by her solicitor annexed documents that had been produced pursuant to a subpoena that the mother had caused to be issued to SAPOL in relation to the father’s records.

17. In addition, the mother in her affidavit made very serious allegations that the father had a history of committing violent offences against not only the mother but also subsequent relationships and prior relationships.  The mother also attached to that affidavit a photograph of the father posted on social media – Instagram, as I understand it – in front of a large cannabis plant.

18. The father filed a Response to that Application in a Case. In that Response he sought orders effectively to reinstate supervised time-spending, but using the Suburb D Children’s Contact Service.

19. It is effectively those two applications that bring the matter before the Court today.

20. Significantly, in the affidavit filed in support of his Response, the father at paragraph 8 admits to saying the words to the contact service worker that he would “smash his fucking face in”, in reference to the mother’s partner.

21. Implicit in the father’s position by seeking supervised time-spending at a service is, in my view, an acknowledgement at his end that, at the very minimum, that the Court would have some concerns in relation to risk factors that the father may present.

22. The extent to which the father acknowledges those risk factors I am unclear.  It may be that it is simply because he acknowledges that supervision is appropriate, given X’s age and/or the limited relationship he has had with him.  It may, however, be something more, and the something more may well be that he acknowledges that there are risk factors related to family violence.

23. I am not sure I can go that far, however, at this juncture, because the father denies all allegations of family violence that have been made against him.  He specifically denies the allegations of family violence particularised in some significant detail by the mother when she filed her first affidavit in these proceedings.

24. He also denies any allegations that he has been violent to a subsequent partner by the name of Ms E.  The circumstances in relation to Ms E have come about because, post Ms E’s separation from the father, she made contact with the mother and made certain disclosures to her.

25. The timing of those matters in terms of how they have been brought to the Court’s attention bears some comment at this juncture.  When the mother filed her affidavit in support of her Application in a Case on 3 May 2021, she made some significant reference to Ms E and to matters that Ms E had disclosed to her pertaining to very serious episodes of family violence, including an episode where Ms E was physically assaulted by the father when she was 20 weeks pregnant.

26. As a consequence of that affidavit, I also understand that Ms E has given birth to a child of whom the father is alleged to be the father, namely, a child named F, born in 2021.

27. When the father filed his Response to the mother’s Application in a Case, he went on oath in relation to the allegations that the mother made about Ms E. Firstly, he complained that the allegations were hearsay. Secondly, he denied the allegations that had been made.

28. On 15 July 2021, approximately six weeks or so after the father filed his affidavit making denials in relation to Ms E, the mother filed an affidavit sworn by Ms E.

29. The affidavit of Ms E is striking, in the sense that it contains a certain level of detail and particularity in relation to very serious allegations of family violence that she also makes against the father. 

30. The one common thread that I observe in relation to the affidavit filed by Ms E and that filed by the mother earlier in these proceedings is that the allegations that each mother now makes in relation to family violence are detailed and particularised. 

31. The allegations are very, very concerning.  They involve allegations of very, very serious episodes of physical violence.

32. It is for these reasons that the mother’s position is that there should be no time-spending either at an interim or a final stage between the father and X.  While not enunciated in this way, I would have to assume that the mother’s position is that the father presents an unacceptable risk of harm to X, both physically and psychologically.

33. From the father’s perspective, implicit in his case is that while he may acknowledge that there is a need for supervision, he ultimately must be saying to the Court that he is not a long-term risk and, certainly, that he does not pose an unacceptable risk of harm to X.  That is why he continues to pursue his application for time-spending.

34. The matter comes before me today, as a consequence of those two recent applications.  The mother has amended her Application in a Case on 25 November 2021 to seek a raft of additional orders.  Those orders relate to, effectively, the father attending to a psychiatrist and undertaking various other courses to satisfy the mother, but, more importantly, the Court, that the father no longer presents a risk factor or a risk factor at all for this child.

35. The matter came before me on 1 June 2021.  At that hearing I raised some concerns with the parties as to whether or not a contact service would in fact facilitate further supervised time-spending as sought by the father.

36. To assist the Court in understanding what the position of a contact service might be in that regard, I made certain orders directing the Independent Children’s Lawyer to make inquiries of the children’s contact service.

37. Those inquiries were duly made, and I have the benefit of an affidavit prepared by the Independent Children’s Lawyer and filed on 27 July 2021.  As I understand and read that affidavit, the position of the Suburb D Children’s Contact Centre is that they would not consider reassessing their willingness to facilitate the father’s supervised time-spending with X, unless and until the father undertook various courses as detailed in the affidavit and, importantly, as detailed in the email sent by the team leader of the contact service to the independent children’s lawyer.

38. The matter, accordingly, comes before me today in circumstances where it remains yet to be seen whether a children’s contact service will in fact be willing to re-engage and supervise the father’s time-spending with X.

39. Significantly, from my perspective, despite the father through his solicitor telling me today that he has enrolled in a course, there have been no steps undertaken by the father to address the very significant concerns that have been raised both by the contact service and in the material that has been produced to the Court.

40. The father has not gone on oath in these proceedings further to the affidavit to which I earlier referred on 31 May 2021, where he made certain denials in relation to events regarding Ms E.  Importantly, the father has not gone on oath whatsoever to indicate what, if anything, he might be prepared to do to address the very significant risk factors that have been identified.  I am told through his counsel today that the father is prepared to address those matters prescribed by the children’s contact service.

41. At the commencement of the hearing, I raised an inquiry with the father’s solicitor in relation to where the matter goes from here, in circumstances where the father’s formal application before the Court is for time-spending at the children’s contact service.  I commented that the application was problematic, given the position taken by the service.

42. The father’s solicitor, to use his words, changed the father’s position “on the fly”, and sought to make an oral application for the father to have supervised time-spending supervised by the paternal grandfather.  I indicated to the father’s solicitor that this was not an application that I was prepared to entertain “on the fly” and without formal documents being before the Court.

43. Ultimately, the father’s solicitor indicated to the court that, while it remains to be seen whether there is to be an Amended Response filed by the father, or some other application in relation to the paternal grandfather, the father’s position and the fall-back position is that he will comply with those requirements prescribed by the children’s contact service.

44. From my perspective, I am very concerned as to how long these proceedings have been before the Court.  I understand that the mother’s position is that both now and in the future the father presents as an unacceptable risk to this child.

45. The matter needs to be brought to a head in some way.  It is beyond the Court’s control as to if and when a children’s contact service may be willing to re-engage this family.  Frankly, they are circumstances which have been brought about solely as a consequence of the father’s conduct.  On any view, it is not in X’s best interests for these proceedings to continue without any end in sight.

46. As I commented to the father’s solicitor and the parties during the hearing, it is for the father to ultimately satisfy the Court that the risk factors that have been identified are not ones that should concern the Court.  It is for the father to put that evidence before the Court, and it is incumbent on him to do so, ultimately.

47. I note that I invited submissions during the hearing as to what should come of the interlocutory applications that are before the Court.  Effectively, the father’s position was that they should be adjourned for a period of some four or five months to enable him to get his house in order and to jump through the hoops prescribed the children’s contact service.

48. The mother indicated that if I took that option, the adjourned period should be a longer period of, say, some seven months. 

49. The mother’s primary position, however, was that the interim applications be dismissed and that the matter be progressed in some way towards a final hearing.  That is also the position that the Independent Children’s Lawyer promoted.

50. The Independent Children’s Lawyer also queried whether there might be another option open to the Court, ultimately, if one of the parties promoted it, in this instance the mother promoting an application for summary dismissal.  I’m not at that stage at this juncture.  What I do have before me are the interlocutory applications.

51. On any view, from my perspective, there is little utility in keeping alive the Response filed by the father.  I say that because they are not orders that he is promoting today.  He may promote them at some point in the future, if he undertakes what the service has recommended, and if the service are willing to re-engage this family.  At this juncture, they are two big ifs, and, accordingly, I see little utility in keeping the Response alive in those circumstances.

1. In relation to the mother’s Amended Application in a Case filed on 25 June 2021, I have indicated to counsel during the course of the hearing that, in circumstances where on 17 July 2019 I made an order that X live with the mother until further order, I do not consider it appropriate on an interim basis to make any order in relation to parental responsibility at this juncture and without further evidence before me in that regard.

2. I also indicated to the parties that I was prepared to make a further order pursuant to section 69ZW directed to SAPOL for records in relation to the father from the time that SAPOL complied with the subpoena that had earlier been issued by the mother in these proceedings.  Clearly, that step is necessary, given the allegations made by Ms E in these proceedings, and my understanding from Ms E’s affidavit that she has engaged with SAPOL in relation to the various incidents of family violence that she has alleged.

3. So far as those matters pursued by the mother in terms of further work to be done by the father to satisfy both her and the Court that the father does not present a risk, they are not orders that I am inclined to make, for the reasons I’ve already enunciated.  As I said earlier, it is for the father to satisfy the Court that he is not a risk and that there are no risk factors.  I do not propose to prescribe how he does so, in all of the circumstances.

4. The only issue remaining in relation to the mother’s Amended Application in a Case is the question of certain injunctions that she has sought.  I had the benefit, it having been sent through to my chambers today, of sighting the Final Intervention Order that has been made in relation to the mother and the father.  That is an order made on 26 July 2019.  It exists as a variation, as I read it, to an earlier Final Intervention Order made in 2017.

5. I note from that document that the protected persons are both the mother and an elder child in the mother’s household, being a child who, I understand from the mother’s allegations, was present and certainly experienced incidences of family violence when the mother and the father were in a relationship.

6. That intervention order, significantly, from the mother’s perspective, does not name the child the subject of these proceedings.  The intervention order does prevent the father from coming within 100 metres of the protected person, contact, communication, and the usual prescriptions about not assaulting, threatening, harassing, or following or keeping the protected persons under surveillance.

7. The order itself prescribes that the father not come within 100 metres of any boundary where the protected person stay or reside, or any educational care facility attended by the protected persons.  As I say, those are prescriptions and prohibitions that exist in relation to the mother and her elder daughter.  They do not relate to X.

8. In all of the circumstances of this case, I consider that it is appropriate that I do make some orders for the personal protection of X.  Given the terms of the Intervention Order, I do not propose to make orders protecting the mother.  I consider the terms of the Intervention Order already in existence sufficiently do so.  I do, however, propose to make orders in relation to X.

9. I pause at this juncture to comment that the mother has crafted the orders she has sought in relation to injunctions to also include her partner.  They are not orders that I am prepared to make.  While I understand why the mother seeks those orders, in light of the threats allegedly made by the father towards the mother’s partner at the children’s contact service, and as recorded in the affidavit of Ms E, I consider that they are matters that are best taken up by the mother’s partner with SAPOL, and I don’t propose to make those orders.  Additionally, I am mindful that the mother’s partner is not a party to these proceedings, and he is not agitating those orders on his own behalf.

10. I otherwise propose to progress the matter to a final hearing.  As I indicated during the course of my reasons and during the discussion with the parties’ legal representatives during the hearing, it is for the father to bring whatever further interim application he sees fit during the adjourned period.

11. NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kari.

Associate:

Dated:       24 August 2021