Lawler and Salmon

[2016] FCCA 2560

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWLER & SALMON [2016] FCCA 2560

Catchwords:
FAMILY LAW – Parenting – urgent application – allegations of severe family violence – father currently on remand – police family violence officer concerned mother and children at risk if orders are not in place before father is released – matter expedited – urgent final hearing – Independent Children’s Lawyer appointed.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), s.68L(2)

Applicant: MS LAWLER

Respondent: MR SALMON

File Number: DGC 2814 of 2016

Judgment of: Judge Harland

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Dandenong

Delivered on: 5 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Connell

Solicitors for the Applicant: Casey Cardinia Community Legal Service

The Respondent: No appearance

ORDERS

1. The mother have leave to proceed ex parte today.

2. The proceeding be adjourned to Final Hearing on 27 October 2016 at 10.00am at the Melbourne Registry of the Federal Circuit Court of Australia before Judge Harland (with an estimated hearing time of one day).

3. The father be permitted to attend by video link at the Final Hearing.

4. The mother make, file and serve any material wished to be relied upon at the Final Hearing on or before 20 October 2016.

5. The father make, file and serve any material wished to be relied upon at the Final Hearing on or before 24 October 2016.

6. Pursuant to s.68L(2) of the Family Law Act1975 (Cth), X born (omitted) 2009 and Y born (omitted) 2012 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation ON AN URGENT BASIS and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

7. The children live with the mother.

8. The mother have sole parental responsibility for the children.

9. The children spend no time with the father.

10. The applicant mother be authorised to apply to the Registrar of Births, Deaths and Marriages in Victoria for the child registered as X and the child registered as Y to be registered as the new names not to be disclosed.

11. Upon application to the Registrar of Births Deaths and Marriages in the State of Victoria is requested to change the Register of Births Deaths and Marriages to show the two children’s name as the new names.

12. The Registrar of Births Deaths and Marriages in the State of Victoria is hereby restrained from releasing the fact of any name change, if and when it occurred and/or the new names ascribed to the said children or the mother, to any person and particularly not to the father.

DECLARATION

1. It is in the best interests of the child X born (omitted) 2009 to be known from this date as a new name which is not to be disclosed.

2. It is in the best interests of the child Y born (omitted) 2012 to be known from this date as a new name which is not to be disclosed.

NOTATION

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975, 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Lawler & Salmon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2814 of 2016

MS LAWLER

Applicant

And

MR SALMON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent application for parenting matters. The application today was listed for an application of review of a registrar’s decision not to list the matter on an urgent basis. The application was filed on 12 September 2016. I am satisfied that the matter should be given expedition and I will be making ex parte interim orders today as sought by the mother. The mother in her initiating affidavit sets out a very concerning history of an incredibly violent relationship that according to her there has been evidence of violence from its beginning to its end from January 2007 until July 2016.

3. There are two young children of the relationship X born on (omitted) 2009 who is seven years old and Y born on (omitted) 2012 who is four years old who on the mother’s evidence have also witnessed the violence that has included serious physical, verbal and psychological abuse. The mother gives detailed evidence with respect to this. The mother says the father has been in jail at various points during the relationship and says they are the periods when she felt safe. Certainly her characterisation of the relationship and the father is one of dominance and control and fear such that the mother has attempted to leave the relationship previously and has not been able to.

4. The father is currently incarcerated on remand and has a bail hearing on 9 November. The mother is very fearful for her and her children’s safety if she does not have orders in place before he is released. She has annexed to her affidavit a summary provided by Senior Constable Ms D of the Victoria Police Family Violence Unit which summarises the fifty charges that the father is charged with which relates to various violence offences towards the mother which date back to early in their relationship.

5. The children have been interviewed by the police which was released on video.  The mother says in her second affidavit that the father has since been charged whilst still in prison with attempting to pervert the course of justice due to witness tampering, which involved him making threats to kill her and the children upon his release from prison.  The mother expresses real fear if orders weren’t made prior to him being released.  She says that the registrar felt that because there was an intervention order in place that the mother and children would be safe.

6. Since the application was filed and seen by the registrar, Senior Constable Ms D has filed an affidavit in support of the mother’s case.  It is highly unusual for a police officer to file evidence in support of a party in this Court. Her evidence is highly concerning.  She supports the mother’s application and refers to the charges.  There is an intervention order on foot and she says that on 2 November 2015 the Sunshine Magistrate’s Court made a full final family violence order with no expiry date. Again that is highly unusual and that indicates that the court was satisfied that there was a high level of violence involved.

7. The types of violence that the mother alleges could be described as at the extreme end. Any family violence is a serious matter, but certainly if the Court is satisfied to the civil standard, bearing in mind section 140 of the Evidence Act 1995 (Cth), then there is a real issue about whether or not any orders for the father to spend time or communicate with the children would be in their best interests. I am mindful of the fact that the father has been charged and not convicted, but of course the issue of whether he is convicted or not is a matter for a criminal court. This court has to be concerned with what is in the best interests of the two children.

8. Senior Constable Ms D expresses real concern that it is likely that the father will apply for bail on 9 November 2016, and if he is given bail, then he presents a real risk to the mother and the children. One of the orders that the mother seeks today on an ex parte basis as an interim order is permission to change the legal names of the children. The order is drafted carefully so that the Court does not know what the proposed names are, and that is appropriate because otherwise it would be necessary for the Court to make a suppression order with respect to those names. Otherwise it would defeat the purpose.

9. It is highly unusual to make an order like that on an interim basis.  It is normally a matter that would be reserved for final orders after the father has had the opportunity to be heard.  Given the serious nature of the allegations that have been made in my view the worst that happens is that an order is made reversing it.  I am also going to list this matter for final hearing extremely urgently due to the serious nature of the risks. 

10. Again, whilst they are allegations and are not established at this stage I cannot ignore the fact that a police officer is expressing serious concerns for the mother and children and also that he has been charged with so many offences such that he has been in remand for the past month.  The mother’s solicitor today advises that he has spoken to Senior Constable Ms D this morning and she has indicated that she will be able to serve the documents on the father by 7 October.

11. Arrangements can be made for the father to attend the hearing via video link if he wishes to participate. I will appoint an Independent Children’s Lawyer to represent the children’s interests. This is particularly important as due to the urgent circumstances of the court there will not be a family report or a section 11F memorandum for the final hearing. It will be necessary to obtain further information for the police such as the police brief and the children’s evidence. The mother’s solicitor indicated that he will attend to that.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  5 October 2016