KILSHAW & DRUMMOND

[2018] FamCA 792

FAMILY COURT OF AUSTRALIA

KILSHAW & DRUMMOND [2018] FamCA 792

FAMILY LAW – PROPERTY – interim order - where the application is by the mother for exclusive possession of the former family home – where the application is opposed by the father – where the application is supported by the Independent Children’s Lawyer – where the father is currently incarcerated – where the father has been charged with serious criminal offences - where the mother is granted exclusive occupation – where the parenting proceedings are being heard in the Magellan list – where it is in the children’s best interests that the mother be given exclusive occupation so that the mother and children may return to the property –  where there are allegations of extremely serious and unconscionable conduct by the father  – where there are allegations of sexual assault of children by the father – where the children have probably been exposed to severe domestic violence - where the mother had been forced to flee the property – where the mother is experiencing extreme financial hardship – where there has been involvement by the Department of Family and Community Services.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kilshaw

RESPONDENT: Mr Drummond

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW – Newcastle Family Law

FILE NUMBER: NCC 2107 of 2018

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilkinson

SOLICITOR FOR THE APPLICANT: McAllister Legal Services

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: IBT Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW – Newcastle Family Law

Orders

1. The oral application for adjournment made on behalf of the father is dismissed.

2. Exhibit 2 is accessible by the legal representative for the mother and the Independent Children’s Lawyer only.

Pending further order, it is ordered that

1. The Applicant mother have sole possession of the property at B Street, C Town (“the property”) within 14 days of the date of these orders.

2. The Applicant mother have sole possession of the property to the exclusion of the Respondent father.

3. The Respondent father be restrained from removing any furniture or furnishings and/or other items from the property.

4. The Respondent father be restrained from approaching and from entering the property.

5. This matter is adjourned to the Magellan List at 9.30 am on Monday 3 December 2018 for mention.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2107 of 2018

Ms Kilshaw

Applicant

And

Mr Drummond

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Kilshaw, the mother, for exclusive possession of the property at B Street, C Town, which I will refer to as the C Town property. The C Town property is the former family home. The mother is the sole proprietor and sole mortgagor of the C Town property.

2. The application is opposed by the respondent father, Mr Drummond.

3. The application is supported by the Independent Children’s Lawyer.

Evidence

1. The documents relied on in the matter are as follows:

For the Mother

a)Application of the mother filed 16/07/2018 - interim orders sought: 4, 5, 6 and 7;

b)Affidavit of the mother filed 16/07/2018;

c)Affidavit of the mother filed 20/09/2018;

d)Financial Statement of the mother filed 16/07/2018;

e)Affidavit of the parties’ oldest child, a young adult, Ms D Drummond, filed 16/07/2018;

f)Affidavit of the maternal grandfather filed 16/07/2018;

There was also a Case Outline document on behalf of the mother.

For the Father

g)Affidavit of the solicitor for the father, Mr E, sworn 21/09/2018.

Report

h)The Magellan Report dated 27/08/2018;

Brief History

1. There are, in summary, most serious allegations of repellent, dangerous and unconscionable behaviour by the father. Those allegations are untested, but the seriousness of them, if they were proved to be true, must be given some weight in this application.

2. An oral application was made by the father for adjournment of the mother’s application for exclusive occupation. The mother opposed an adjournment, and the solicitor-advocate for the Independent Children’s Lawyer (“the ICL”) did not support it. The application was declined, for reasons given ex-tempore.

3. The father has been incarcerated in C Town jail since his arrest. He is charged with serious criminal offences in relation to two of his daughters,[1] namely, aggravated indecent assaults, aggravated sexual intercourse with a person of 14 years, and assault occasioning actual bodily harm.

   [1] Exhibit 2

4. The father is next before a court in respect to those charges in November 2018.

5. In September 2018 the Local Court at C Town made interim Apprehended Domestic Violence Orders restraining the father’s conduct in relation to certain children and the mother.

6. On 10 September 2018 an application for a grant of Legal Aid was made on behalf of the father in respect of the application to this Court by the mother. That application was refused. An appeal against refusal was lodged.

7. The father is represented by a solicitor who has made every effort to attend at the jail, despite considerable difficulties, and take instructions from the father.

8. There is a history of violence alleged by the mother, which culminated in a decision by her, she says, in December 2016, to move, with all the children, out of the C Town property, to live with her oldest daughter in F Town. The notes from the Department of Family and Community Services (“FACS”) refer to this decision as the mother and children having fled the house.[2]  The FACS records also indicate complaints made by the children about the conduct of their father over the years.

   [2] Exhibit 1

9. The Court is not in a position to know exactly what happened, but the complaints raised by the children, such as watching their mother having bones broken, being punched and hit; having furniture, plates and food thrown at them; and being hit with poles and thrown against walls.

10. It is alleged that in recent weeks, that is, prior to July 2018, there had been a home invasion, where the children’s lives were threatened by three unknown men. The assailants were armed with a gun and knife. They were arrested, and are in prison. They threatened the children that they would return and kill them. There is no indication that the father was directly involved, or indirectly involved, in that incident. Rather, it is an indication of just how violent and unpredictable the children say their lives had been.

11. On 3 November 2017 the mother attempted to move back into the C Town property but was unable to do so. The father strongly resisted the move. Police were called to a melee at the house, involving both parties, their two older children and other third parties. The oldest child, Ms D, then 18, was taken to hospital by ambulance. X, then aged six, was treated for cuts and abrasions at the scene. The mother retreated from the attempt to move, and has since then lived at a rental property 40 minutes out of F Town.

12. I am satisfied of the following four matters:

    a)That the mother is living in a remote location, which makes school attendance difficult for the children. Their former school, near the C Town property, is G School, which is within walking distance of the home;

    b)That the mother is paying rent where she is, but also bears responsibility for mortgage repayments in respect to the C Town property. The father had made some payments whilst he was living in the house in the absence of the mother, but apparently that has now ceased;

    c)Two of the children with particular medical conditions, namely, Y, aged five, and Z, 15, have attended H Medical Practice. Continuity of care within easy distance would be helpful to them.

    d)That the mother is not in paid employment. She receives Centrelink benefits, in the order of $1200 a week. She has six children to care for. She also provides care for her oldest daughter, Ms D, and her three year old child. Ms D is currently pregnant.

13. I was urged by counsel for the father to be cautious in excluding the father from the home. As the advocate for the ICL succinctly submitted, the father is gone from the home, he is in jail.

14. It was also argued that consideration should be given to the parties’ oldest son, now 18, who has been living in the C Town property with his girlfriend and their child. I reject that submission. Priority should properly be given to the six subject children, aged between 15 and three, and to the mother, who has been their primary carer at least since December 2016, but perhaps all their lives, and is now their sole carer.

Conclusion

1. This is a case where hardship to the mother is evident, even on untested evidence. The FACS statements raise very serious domestic violence issues from the past. Exclusive occupation by the mother does not represent immediate hardship at any level for the father, and it is appropriate that an order be made.

2. It was submitted on behalf of the father that 45 days be allowed for the parties’ son and his family to leave the house. The father, who was, previous to his arrest, living in the property, has been on notice since 16 July 2018 that this application was pending. Both father and son were living in the house together.

3. The priority is for the children to return to the house and be in a position to start school, when Term 4 commences, at the school they had previously attended.

4. Orders are made accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 21 September 2018.

Associate: 

Date:  21 September 2018