Hough and Willis (No 3)

[2012] FamCA 969

FAMILY COURT OF AUSTRALIA

HOUGH & WILLIS (NO. 3) [2012] FamCA 969

FAMILY LAW - Parenting; extreme violence; child subjected to witnessing the abuse of her mother.  No order for husband’s contact with the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hough

RESPONDENT: Mr Willis

Independent children’s lawyer:

FILE NUMBER: DGC 2101 of 2011

DATE DELIVERED: 19 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trim

SOLICITOR FOR THE APPLICANT: Waters Lawyers

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelsen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE Family Lawyers

Orders

1. That the child of the marriage S born …2006 live with the applicant mother.

2. That the applicant mother have sole parental responsibility for the said child.

3. That all extant proceedings be otherwise dismissed.

4. That the appointment of the Independent Children’s Lawyer be discharged.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2101  of 2011

Ms Hough

Applicant

And

Mr Willis

Respondent

REASONS FOR JUDGMENT

1. On 19 November 2012, the parenting dispute between Ms Hough (“the wife”) and Mr Willis (“the husband”) came before the Court on a final basis.

2. The parenting dispute revolved around their child S (“the child”) who was born in 2006.

3. The wife was represented by counsel and pursuant to an order made by the Federal Magistrates Court, counsel appeared on behalf of the Independent Children’s Lawyer.  The husband was called but did not appear.  The wife sought to proceed on an undefended basis.  That course of action was supported by the Independent Children’s Lawyer.  For the reasons that follow, it was appropriate to so proceed and final orders have now been made in respect of the child.

The background of the proceeding

1. Initially the proceedings were commenced in the Federal Magistrates Court by application and the wife sought orders that she have sole parental responsibility for the child that the child live with her and that the husband spend time with the child as determined by the Court.  That application came on for hearing before Riethmuller FM on 10 October 2011 at Dandenong.  The father appeared in person at a time when he had not filed any documentation.  His Honour adjourned the matter to a final hearing to commence in May 2012.  It was then that the appointment of an Independent Children’s Lawyer was requested of Victoria Legal Aid.

2. In addition, his Honour made an order for a family report to be prepared, the focus of which was to be on whether the child should have contact with the husband.  It is important to note that his Honour also ordered the husband to file and serve a response to the mother’s application supported by an affidavit within 35 days of 10 October 2011.  No such response was filed. 

3. The matter then came on for hearing on 16 April 2012 before Riethmuller FM where again, the husband appeared in person.  On that day, all parties consented to the matter being transferred to this Court but an order was also made (at the request and consent of the parties) that the solicitors for the husband be relieved of any obligation to file any responding material until further order.  Further, it was ordered that the solicitors for the husband as well as the Independent Children’s Lawyer be restrained from showing the wife’s material to the husband without further notice. 

4. On 31 May 2012, the matter came before me at which time, the issue of the last-mentioned orders was argued.  I made orders discharging the injunctions and set the matter down for hearing on 22 June 2012. 

5. On 31 May 2012, I also ordered that the husband file a response by 20 June 2012.  He did not do so.

6. On 22 June 2012, the matter came before me again as the first day before a judge where I heard counsel for each party.  It will therefore be noted that on that day, the husband was represented by counsel.

7. The issues joined between the parties were effectively those noted by Riethmuller FM about what contact should take place between the husband and the child. 

8. I ordered that the hearing be listed for 31 October 2012 and that the evidence in chief of all witnesses be given by affidavit.  In respect of the applicant wife, I directed that she file her material by 27 July 2012.  She did so on that date. 

9. I also ordered that the husband file his affidavits of evidence in chief by 17 August 2012.  He did not do so.  On 14 August 2012, the solicitors then acting for him on the record, filed a Notice of Ceasing to Act.

10. Because the issue relating to the parenting orders pursued by the wife was controversial, I ordered the preparation of a family report specifically directing that it not be commenced until 30 September 2012 to enable the family consultant assigned to it, to have access to the affidavit material of the parties.  Not only did the husband not file that affidavit but he also failed to attend the designated interview with the family consultant.

11. Becoming aware of the absence of compliance by the husband, I listed the matter for mention on 31 October 2012 at which time, the husband appeared by telephone in person.  He gave me an explanation that he had been preoccupied and said that all he wanted to do was to see his daughter.  I inferred that he considered it not terribly important to comply with orders of the Court including in relation to attending the family report interview.  He explained that he had changed addresses but he gave no indication of any intention to comply.  Indeed, he said that he could see little point in attending the court.  It was on that basis therefore that having filed nothing further and not having appeared on 19 November 2012, I permitted the mother to proceed on the basis that there was no dispute about the orders she was seeking.

12. It should be noted however that when the husband was represented by lawyers, he filed a response on 18 April 2012.  In that response, he sought equal shared parental responsibility for the child, that the child live with her mother and:

    That the father spend time with the child as determined by the Court.   

13. I have said on a number of occasions previously, that orders of the Court are there for a purpose.  In parenting matters, filing of material enables a court to make a proper assessment of what is in the best interests of a child and any expert required to give evidence has the benefit of understanding the respective parties’ positions before commencing the interview.  The Court is always amenable to applications to vary timetables to ensure that trials do not waste public resources which are obviously scarce.  For the husband to simply shrug his shoulders and say that he just wanted to see his daughter, was grossly inadequate.  To the extent that he was not represented by a lawyer for whatever reason, there are ample community legal services available as well as the assistance provided by Victoria Legal Aid so that documentation could have been prepared.  It is a very common thing in this Court, as in others, for litigants to appear without legal representation.  Legal representation is a privilege not a right.  The absence of legal representation does not entitle a litigant to not comply with court orders. 

14. In the circumstances, it is appropriate normally to strike out an application or response where it is not prosecuted.  Here, the orders sought by the husband could not succeed based on the matters to which I shall turn.  Accordingly, on its merits, his application for orders is dismissed.

The background

1. The wife is 32 years of age and a pensioner.  She has remarried and has a child who is now eight months old.  She also has two children from a previous relationship who are aged 16 years and 12 years respectively.  Sadly, their importance in these reasons will be evident below when I point to the violence perpetrated by the husband on the wife. 

2. The wife receives a pension because of a lower back injury she received as a disability worker some years ago.

3. In his responding material in April 2012, the husband described himself as unemployed.  I know nothing further about his background other than what is contained in an affidavit of 18 April 2012.  With the paucity of evidence in this case, I consider it important to at least contemplate that material when I look at some of the facts described by the wife. 

4. The parties began living together in 2004 and lived in various locations until they married in 2008.  The child was born in 2006.  The relationship came to an end in September 2008 and the parties remained apart until January 2010 when they resumed their relationship but it finally came to an end in April 2010. 

The evidence

1. The wife referred to her knowledge of the husband’s drug usage background which, with alcohol, he commenced at the age of 13.  She described several drug-induced psychoses episodes and said that he hid the drugs from her.  She referred to calling ambulances, police and the CAT team for these episodes.

2. She gave vivid descriptions of assaults by the husband upon her in June 2005, January 2006, June 2006, September 2008 and April 2010.  There was another episode of violence between the husband and his brother in February 2010.  It is often said that family violence within the home is insidious because of its cloak of secrecy in occurring behind closed doors and between parties in a family relationship.  In this case, I do not have to concern myself with the accuracy of the statements by the wife because the husband’s record speaks for itself.  I shall refer to that below.

3. In June 2005, eight year old C was present when the drunken husband grabbed the wife by the jaw.  The child intervened and ran for help and the police ultimately attended.

4. In January 2006, the husband attempted to suffocate the wife, twisting her neck and threatening to kill her.  He then punched her in the stomach after grabbing her by the hair.  The wife then left the home and went to live with her mother for a month during which time, the husband entered a facility for the purposes of drug and/or alcohol addiction.  That seemed to resolve the problem to some extent because the parties then resumed their relationship.

5. In June 2006, another drunken episode saw the husband push the wife at a time when she was five months pregnant with the child.  He then kicked and stomped on her in the presence of the two younger children.  Again, the police were called but he left before their arrival.  This incident saw the wife admitted to hospital for five days requiring the wearing of a neck collar and the support of a walking stick.

6. Again, the husband went into a rehabilitation facility.  The wife returned to live with him.  She said that she felt she had no choice.

7. The birth of the child saw her with post-natal depression and she admitted herself to a clinic during which time, her parents looked after the two other children. 

8. In September 2008, another violent assault occurred during which the husband hit the wife over the head with a champagne bottle and punched her in the face.  She was again hospitalised but this time, the attendance of the police brought about charges and on 13 October 2009, the husband received an eight month sentence of imprisonment which was suspended upon him undertaking a community based order with a requirement for drug and alcohol counselling.  On the uncontested evidence of the wife, that was an extremely lenient outcome.

9. The parties then separated for quite some time during which, the husband resided at the rehabilitation facility.

10. Without warning, the husband appeared at the wife’s premises and moved in. 

11. On 2 April 2010, the drunken husband abused the wife, refused to leave and disconnected the telephone line.  He pushed the wife to the floor and then chased one of the other two children.  This brought the police to attend but it also terrified the child S who had obviously witnessed the scene.

12. The wife’s evidence was that on 19 January 2011, the husband was convicted of the offences of recklessly causing injury, breaching a community based order, unlawful assault and making threats to kill.  Again, and it would appear to be extremely lenient, he received an eight months sentence of imprisonment which was highly suspended upon him returning for drug and alcohol counselling.

13. It was in this setting that the husband sought contact as I have described it above.  In other words, he left it to the Court to decide what was an appropriate time for him to spend with S.  It is clear on the evidence of the wife that she is terrified of him.  The absence of any affidavit material and his attendance at the family report interview, leaves me with no alternative than to presume that he has not changed any of his habits.  Having said that, in his affidavit filed in April 2012, he set out his background of drugs and lack of home life.  In a bizarre paragraph, he said that he believed that the wife had a severe personality disorder.  He based that on the fact that she had admitted herself to a psychiatric clinic.  He said the main manifestation of those problems was severe mood changes.  He then went on to have a different view about a number of matters to which the wife had earlier referred in an affidavit.  He then said that he understood his past behaviour and actions whilst under the influence of drugs and/or alcohol and that they had caused the wife great emotional and physical damage.  He said he was extremely sorry and wished to apologise.  He said that his solicitor had obtained information from the rehabilitation centre to show that he had eliminated drugs and alcohol from his life and that he was a changed person as a result.  He therefore concluded that it was in the child’s best interest to spend any time with him. 

14. Without the husband participating in the court process, I doubt very much whether I could accept what he had to say particularly when the convictions to which I have referred indicate that a court was sufficiently concerned about the offences to impose a term of imprisonment albeit it was not to be physically served in a prison.

The impact on the Child

1. The wife’s unchallenged evidence was that as a result of S witnessing these horrible events, she suffered from speech difficulties, social difficulties, toileting problems, sleeping difficulties as well as oppositional and distressed behaviour.  The wife set out how things had improved with counselling.  Any involvement of the Department of Human Services now appears concluded.  The child is receiving treatment from a local psychologist twice per week primarily using play therapy. 

The wife’s position

1. The wife asserted that she thought that the husband continued to use drugs and alcohol.  She said that she believed this because he telephoned her around March 2012 in a drunken state endeavouring to convince her to withdraw the legal proceedings.

2. The wife now keeps her address secret for fear of the husband’s behaviour.  In my view, that fear is justified.

The family report

1. The family consultant interviewed the wife and observed the child and read various documents provided to him.  He was not required for cross-examination.

2. Initially, the wife was reluctant to attend because she thought it was abusive for the child to have to go through that interview.  She had to be convinced.

3. The child presented as a friendly and polite six year old who was comfortable with the process.  She separated readily from her mother and appeared well-presented.  She did not know why the mother had brought her for the interview.  She spoke readily about her school and the things she there enjoys.

4. When asked about what might happen if she had to see her father, she said that her mother would not be very happy about it but she did not display any obvious distress, anxiety or repulsion at the possibility of so spending time. 

5. Ultimately, the family consultant was not able to make any recommendations because of the absence of the father’s involvement.

Psychiatric assessment of the mother

1. The mother subjected herself to a psychiatric examination and in August 2012, Dr W felt she had not suffered from any psychiatric condition requiring treatment.  The husband did not attend the scheduled appointment.

Police involvement

1. The family consultant had access to subpoenaed material and his observation was that what he read showed numerous incidents of violence dating back to 1994 resulting in many family violence orders.  There were insufficient details to enable me to deal with the matter more comprehensively but it is clear that the family consultant was troubled by what he read.

The legal issues

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) determines the way in which a court must resolve a parenting dispute.

2. When making a parenting order, the Court must apply a presumption that it is in the best interests of the child for that child’s parents to have equal shared parental responsibility.  That presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in family violence.  That applies here and the presumption must be rebutted.

3. Section 61DA(4) also gives the Court discretion to rebut the presumption (if that was necessary) on the basis that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  Not only does the mother wish no contact personally with the husband but his appalling record of violence would suggest that it would be dangerous for her to resume any communication.  There is no prospect therefore that if an order for shared parental responsibility was made, the parties could consult with one another and make a genuine effort to come to a joint decision.  On that basis, it would not be in the best interests of the child for such an order to be made.

4. Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.  In this case, I intend to make a parenting order.  There is no dispute between the parties that the child should live with the wife.  The contentious issue has always been what time should be spent between the husband and the child.  It will be recalled that both parties left that issue for the Court to determine.  On that basis, whatever the Court decides must be in the best interests of the child.

5. Section 60CC provides that when determining what is in the child’s best interest, the Court must consider the matters set out in that provision. 

6. There can be little doubt that the child will not benefit from having a meaningful relationship with the husband in circumstances where he behaves as I have described above.  The child was described by the wife as terrified and indeed, the family consultant who read the police subpoenaed material referred to that particular occasion as being one associated with a hostage situation.  Furthermore, the unchallenged evidence of the wife about the impact of the violence upon the child would lead me to conclude that she could have no trust in her father even if she could be protected from the physical and psychological harm in being exposed to the family violence.  The family consultant noted no significant interest by the child in her father and that is hardly surprising having regard to the what the child has experienced. 

1. There is a clear need to protect the child from the psychological harm by being subjected to or exposed to family violence and having regard to the absence of any evidence from the husband, I have no confidence that he has altered his views notwithstanding the affidavit that he filed in April 2012. 

2. Section 60CC(3) sets out a number of other considerations.  The child is too young to have her views carry any sufficient weight.  She has no relationship with the husband at the moment that could be observed by the family consultant and I have no evidence from him as to how he would see that relationship as it presently stands.  It is quite clear from the evidence of the wife that she will not facilitate any relationship and having regard to the assaults upon her, that is hardly surprising.  I do not know what would happen if an order was made for contact because the best evidence I have is from the family consultant who indicated that the child was not repulsed by the thought.  The husband did not bother to tell the Court just how he would see his involvement in this little girl’s life.

3. Because I do not have any evidence about the husband’s current residential and financial position, I do not know what his capacity is as a parent.  His application for orders simply left it to the Court to decide but he put no proposals as to where or how such contact could occur.  I do not know if he anticipated that it would be a long-term supervised arrangement or not.  I do not know whether he can provide for the needs of the child in respect of her emotional and intellectual matters.

4. One of the matters that a court is obliged to take into consideration is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  This is a matter in which I am only concerned with contact by the father.  As such, I do not need to contemplate in any detail the mother’s position.  She is the unchallenged carer of the child and will have that responsibility into the future.  The father’s attitude to parenthood must be seen as questionable.  He has not fulfilled any of the responsibilities of parenthood.

5. I have already set out the evidence in relation to family violence and family violence orders and nothing more needs to be said about it.

6. Section 60CC requires the Court to consider whether making a final order would benefit the child and in this case, the husband has made no proposal as to how he would develop any relationship.  In that case, the child deserves to get on with her life without the constant interruptions associated with litigation.

7. Section 60CC(4) and (4A) require the Court to examine what the parties have done to fulfil and facilitate the relationship between a child and the respective parent.  It ought to be clear from my findings above that the mother’s reticence is understandable if not justifiable.  In my view, I would not criticise what she has done having regard to what she has been through.  The husband has not made any serious attempt to resolve the issue and have a part in the child’s life.  It is totally inadequate to simply say that he just wanted to spend time with his daughter.

8. In my view therefore, the orders I now make excluding the husband from this child’s life and giving the wife sole parental responsibility are in her best interests.

I certify that the preceding Fifty Nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 November 2012.

Associate:

Date:  22 November 2012