Longford and Byrne and Anor
[2017] FCCA 762
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONGFORD & BYRNE & ANOR | [2017] FCCA 762 |
| Catchwords: FAMILY LAW – Final parenting – best interests of the children – determination of parental responsibility – allegations of significant family violence – where the children are exposed to family violence – finding of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60CA, 60CC, 60CC(2A), 61DA,65DAA(5), 65DAC,65F, 68B, 68P, 69ZW, 102QB Children and Young Person’s (Care and Protection) Act 1998 NSW, s.248 Family Law Amendment (Family Violence and Other Measures) Bill 2017 Universal Declaration of Human Rights 1948, Article 1 International Convention on the Rights of the Child Evidence Act 1995, ss.81, 97 |
| Cases cited: Jones & Dunkel (1959) 101 CLR 298 Longford & Byrne [2015] FCCA 2504 Gordon & Gordon [2015] FamCA 616 Rice & Asplund (1979) FLC 90-725 Deacon & Castle [2013] FCCA 691 Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 68 Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 A v A (1976) V.R 298 M & M (1987) FLC 91 – 830 B & B (1986) FLC 91 – 758 Leveque v Leveque (1983) 54 B.C.L.R 164 Re G(a minor) (1987) 1 W.LR 1461 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93 – 235 N & S (1996) FLC 92 – 655 Napier & Hepburn (2006) FLC 93 – 303; (2006) 36 FamLR 395 S & S [1993] NZFLR 657 M v Y [1994] NZFLR 1 Potter v Potter [2007] FamCA 350 Johns & Jasapas [2016] FamCA 471 M v M (1988) 166 CLR 69 Harridge & Harridge [2010] FamCA 445 Mazorski & Albright [2007] FamCA 520 Aldridge & Keaton (2009) FLC 93-421 Burton & Churchin & Anor [2013] FamCAFC 180 Harrison & Woollard (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 Other Articles Cited: Inquest into the death of Luke Geoffrey Batty, |
| Applicant: | MS LONGFORD |
| First Respondent: | MR BYRNE |
Second Respondent: | MS BYRNE |
| File Number: | PAC 1176 of 2015 |
| Judgment of: | Judge Harman |
| Hearing dates: | 5, 6, 7 October 2016, 30 & 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Torrisi of Family Law Practice Australia Pty Ltd |
| The First Respondent appeared in person |
| The Second Respondent appeared in person: | |
| Counsel for the Independent Children’s Lawyer: | Ms Neville |
| Solicitors for the Independent Children’s Lawyer: | Ms Coady of Louise Coady Family Lawyers Pty Limited |
ORDERS
All previous Orders with respect to the children, X born (omitted) 2009 and Y born (omitted) 2012 (“the children”), are discharged.
The mother, Ms Longford, shall have sole parental responsibility for the children.
The children shall live with their mother.
The children spend no time with their father.
The children have no communication with their father save as provided by these Orders, namely:
(a)The father shall be and is hereby permitted to forward letters, cards and gifts to the children at Christmas, Easter, Father’s Day, and the birthday of each of the children and with respect to same:
(i)Such items shall be forwarded to the mother care of her solicitors or such other postal address as the mother may advise;
(ii)The mother shall be at liberty to provide any gifts to the children and to provide to the children or read to them any letters or cards provided that such provision shall be at the mother’s discretion;
(b)The father shall be entitled to attend at the school attended by the children or either of them no more than once per school term to speak with the children’s teacher/s or the School Principal and to receive, at such meetings, general information regarding the children’s school attendance, progress and performance and view the children’s work provided that:
(i)The father shall be accompanied by his mother (the children’s paternal grandmother);
(ii)The attendance shall be outside of school hours and at a time when the children and the mother will not be nor likely to be present at the school; and,
(iii)The father shall not be entitled to view or receive any material that discloses the address or telephone number or other contact details of the mother or the children.
Pursuant to section 68B of the Family Law Act 1975 the father shall be and is hereby restrained and injuncted from causing to be posted to the internet or published by any other means whatsoever:
(a)Any photograph of the mother or the children;
(b)Any reference to the mother or the children;
(c)Any comment upon the mother, the children, these proceedings or any issue or allegation raised therein.
The father shall ensure that any social media post, Facebook page or other material presently posted or posted by him at any time in the past is immediately removed and further:
(a)The father shall do all things, give all instructions and authorities and take all steps in his power to ensure that the administrators of any such site cause those postings to be permanently removed and inaccessible by any person;
(b)Shall cause any posting made to any Facebook page or any other social media page maintained by him (whether in his name or in any other name) which refers to the above matters to be immediately removed from that page.
For a period of 2 years from the date of Final Orders, the children shall spend time with the second Respondent paternal grandmother, Ms Byrne, for a period of 2 hours on one occasion each two month period and such time to occur at and be supervised by a contact supervision service as agreed between the mother and paternal grandmother with costs of accessing such service to be paid by the paternal grandmother.
The mother shall nominate a contact supervision service within 14 days of the date of these Orders.
The mother and paternal grandmother are to do all acts necessary to comply with any intake procedures requested by the contact supervision service.
The children may spend any additional time with the paternal grandmother as agreed between the mother and paternal grandmother.
The paternal grandmother is hereby restrained from informing the father of the date, time and location of any time the children spend with her.
The paternal grandmother is hereby restrained from allowing the children to come into contact with or communicate with the father.
In the event that father approaches the children whilst they are spending time with the paternal grandmother, she will use her best endeavours to remove the children from the presence of the father.
The mother is at liberty to provide a copy of these Orders to any school the children attend.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Pursuant to section 65DA(2) and section 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 and 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 under the pseudonym Longford & Byrne & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1176 of 2015
| MS LONGFORD |
Applicant
And
| MR BYRNE |
Respondent
And
MS BYRNE
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future parenting arrangements for two young children:
X, born (omitted) 2009 (hereinafter referred to as X); and,
Y, born (omitted) 2012 (hereinafter referred to as Y).
As would be apparent from the above, X is presently aged seven years and six months and Y is presently aged four years and six months.
The parties to the proceedings are numerous. The primary parties are the children’s parents, Ms Longford, (the children’s mother and the Applicant) and Mr Byrne, (the children’s father and first Respondent). Mr Byrne’s mother, Ms Byrne, is also a party in her own right and is referred to within the documents filed with the Court as the second Respondent.
The interests of X and Y are independently represented, and competently and capably so, by an Independent Children’s Lawyer and Counsel.
From the outset, I make clear that I propose to refer to the parties throughout these reasons by generic titles. I am normally at pains to avoid such generic reference to parties, preferring to use their surnames rather than descriptions of their role in the proceedings. However, in this case, it is abundantly clear that each of the parties, Ms Longford, Mr Byrne and Ms Byrne, are fundamentally proud of and define themselves, to a large extent, by reference to their relationship to and/or the role that they play in the lives of these children. Thus, I will frequently and unapologetically refer to Ms Longford as “the mother”, Mr Byrne as “the father” and Ms Byrne as “the grandmother” (although that is not to suggest that the children do not have other loving and capable grandparents, as they do, although the maternal grandparents are not parties to these proceedings).
Material considered
In dealing with the proceedings I have read and considered each of the documents identified by each of the parties.
In the case of the Applicant mother I have read and considered:
a)The Initiating Application filed 17 March 2015;
b)Ms Longford's Affidavit of evidence sworn or affirmed 18 July 2016 and filed the same date;
c)Ms Longford's Affidavit sworn or affirmed 17 March 2015 and filed in these proceedings 17 April 2015.
The latter Affidavit was referred to during cross-examination and annexes a number of documents which have become relevant. Accordingly, it has been considered.
In the case of the Respondent father I have read and considered the following:
a)The Response filed 1 May 2015;
b)The Affidavit of Mr Byrne sworn or affirmed 18 August 2016 and filed the same date;
c)The Affidavit of Ms R (the father’s partner) sworn or affirmed 28 July 2015 and filed the same day.
In the case of Ms Byrne, I have read and considered:
a)An Application in a Case which was dealt with on 8 April 2016 and disposed of on that date (by granting the relief that was sought, namely, a joinder to the proceedings);
b)The Affidavit of Ms Byrne sworn or affirmed 4 March 2016 and filed 7 March 2016;
c)The Response filed by Ms Byrne 17 May 2016. This Response sets out the relief sought by Ms Byrne, the children’s paternal grandmother.
I have also been provided with a Case Outline document by each of the mother, father and Independent Children’s Lawyer.
Each of the parties were required for cross-examination, as was the author of a Family Report prepared in these proceedings and to which I will turn in due course. The cross-examination of each of the parties and the Report writer comprises a substantial and important part of the evidence before me.
There are also a significant number of Exhibits comprising:
a)Exhibit A1, certain emails;
b)Exhibit A2, certain material from the Department of Family and Community Services New South Wales;
c)Exhibit R1, telephone records;
d)Exhibit R2, an amended Statement of Police facts. The Police facts relate to a conviction recorded against Mr Byrne upon the entering of a plea of guilty and which related to an assault by Mr Byrne upon Ms Longford, which assault forms a significant event in the context of these proceedings and which will be discussed separately;
e)Exhibit R3, a record of Antecedents for the father;
f)Exhibit ICL1, a Minute of Orders sought;
g)Exhibit ICL2, a Report prepared by a Mr R, Psychologist, being a therapist with whom the mother, father and the children engaged;
h)Exhibit ICL3, a letter from the father addressed to the children by email (the email was not received by the children, having been forwarded to email accounts created for the children by the father and with the intention that various communications and records would be held within those electronic files and made available to the children in due course);
i)Exhibit ICL4, a letter written by the father to the mother during and as part of the therapeutic process in which the mother and father engaged with their children;
j)Exhibit ICL5, material produced by New South Wales Police.
k)Exhibit ICL6, two specific COPS event entries, being events dated 28 April 2016 and 16 March 2016;
l)Exhibit ICL7, A pre-sentencing report with respect to Mr Byrne dated 21 July 2015. This relates to the assault conviction, the subject of Exhibits R2 and R3;
m)Exhibit X, a Minute of Orders sought tendered by the Independent Children’s Lawyer at the commencement of submissions.
I will shortly discuss the evidence to the extent that to do so is necessary to deal with and address the disputes that present before this Court. Before doing so, I propose to outline the submissions that are put by each of the parties and by the Independent Children’s Lawyer at the close of evidence. That is not intended, as it were, to “put the horse before the cart”, but to give some insight into the positions that are ultimately advanced and which require determination.
Proposals of the parties
By her Initiating Application filed 17 March 2015, the mother sought Orders as follows:
a)That the mother have sole parental responsibility for X and Y;
b)That the children live with the mother.
As would be apparent, no provision is made within the relief sought by the mother for the children’s relationship with their father. That is a position that has been maintained throughout the proceedings.
By his Response filed 1 May 2015 the father sought Orders as follows:
a)That the parents have joint parental responsibility (sic) for X and Y;
b)That the children live with their mother;
c)That the children spend time with their father each alternate weekend from Friday after school (at 3pm) to Monday before school (at 9am), together with a period each Wednesday night from 3pm until 7:30pm and for times on special occasions, periods during school holidays and the like.
Provision was also made within the Orders sought by the father to permit the father to obtain information from schools, be advised of the children’s residential address and telephone number, attend at sporting and extracurricular events as well as a non-denigration Order.
The grandmother, for her part, sought Orders by her Response filed 17 May 2016 as follows:
a)That the mother have sole parental responsibility for X and Y;
b)That the children live with their mother;
c)That the paternal grandmother spend time with the children one weekend each calendar month from 6pm Friday until 6pm Sunday, together with periods at Christmas, Easter and Father’s Day.
By the close of evidence, the position of the parties had altered somewhat.
At the close of evidence the Independent Children’s Lawyer tendered a Minute of Order (at variance to that which had previously been tendered) marked Exhibit X. Therein, Orders were sought as follows:
a)That all previous Orders for X and Y be discharged;
b)That the mother have sole parental responsibility for the children;
c)That the children live with the mother;
d)That the children spend no time with the father;
e)That the children have no communication with the father;
f)That for a period of two years from the date of Final Orders, the children spend time with the paternal grandmother for a period of two hours on one occasion each two-months, such time to occur at and be supervised by a contact supervision centre as agreed between the mother and paternal grandmother, with costs of accessing such service to be paid by the paternal grandmother;
g)That the children spend any additional time with the paternal grandmother as agreed between the mother and paternal grandmother;
h)The maternal grandmother be restrained from informing the father of the date, time and location of any time the children spend with her;
i)The maternal grandmother be restrained from allowing the children to come into contact with or communicate with the father;
j)In the event that the father approaches the children whilst they are spending time with the paternal grandmother, that the paternal grandmother use her best endeavours to remove the children from the presence of the father;
k)That the father be prohibited from contacting or approaching either or both of the children by any means;
l)That the father be prohibited from knowingly contacting any school the children attend;
m)That the mother be at liberty to provide a copy of these Orders to any school the children attend.
Some discourse occurred during submissions as to these Orders and the acceptance by the parties of the Orders proposed by the Independent Children’s Lawyer.
The mother, through her Counsel, indicated her broad consent to the Orders proposed by the Independent Children’s Lawyer and adopted and relied upon the submissions put by the Independent Children’s Lawyer. That was save and except for one variation which was sought by the mother, and that being that Order 12 (subparagraph j) above) as proposed by the Independent Children’s Lawyer, be expanded to impose a positive obligation upon the grandmother to contact the Police should the father approach her or the children during any period that the grandmother was spending time with them.
Ultimately, and for reasons that will be articulated, I am not satisfied that such a variation need occur. In particular:
a)The variation is opposed by the Independent Children’s Lawyer, father and grandmother;
b)Any time that the grandmother would spend with the children in accordance with the Order as proposed will occur at a supervised contact service;
c)There are a number of inherent difficulties in expecting that the paternal grandmother will telephone the Police and make a report or seek Police assistance with respect to her son, in light of the father’s past involvement with Police and his criminal record and the reasonable anticipation that Police involvement may escalate the situation (at least as regards the father’s reaction) and/or lead to the father’s arrest;
d)The father coming into contact with the children would constitute action that would warrant Police involvement. It is not the role of Police to enforce Orders made by civil Courts.[1]
[1] Whilst the Family Law Amendment (Family Violence and Other Measures) Bill 2017 proposes to create an offence of breaching an injunction made under section 68B of the Family Law Act 1975, that Bill has not yet passed into law. More importantly, no injunction pursuant to section 68B of the Act is sought with respect to the father. The role of Police is to keep the peace and investigate and prosecute breaches of criminal codes or as may be authorised by legislation. It would, in the circumstances of this case, be inappropriate to trouble the Police or to potentially expose the children to a greater conflict and escalation of events.
During submissions, the paternal grandmother indicated her consent to Orders as sought by the Independent Children’s Lawyer. That is a substantial, significant and profound concession on the part of the grandmother. That which is proposed in relation to the grandmother’s time is limited and could not be described as capable of procuring a meaningful relationship between the grandmother and these girls. The Orders proposed would, at best, permit some knowledge of the grandmother and paternal family.
The grandmother’s concession was readily made with a desire to ensure that she could play some role in the children’s lives and thereby provide some positive benefit to them by knowledge of and association with paternal family whilst at the same time demonstrating the grandmother’s wish to not interfere with or undermine the mother’s parental authority or relationship with the children.
Importantly, the grandmother commenced her submissions by indicating her clear belief that her son, the children’s father, was not yet ready to spend time with the children and, correspondingly, that the mother and the children were not yet ready for that exercise to be attempted.
In submissions, the father was clear that he desired some form of relationship with the children, even if that relationship was practiced through supervised time only. It was clear from the father’s submissions, however, that he recognised that there was substantial work to be done by him, what he referred to as “room for improvement”, before time could realistically commence or commence with benefit to these girls.
The father, whilst not conceding the position advanced by the Independent Children’s Lawyer, indicated that he respected the position advanced by the Independent Children’s Lawyer and understood their reasons for proposing such arrangements, albeit that such proposals were disadvantageous to his position.
The father ultimately sought, if nothing else, to reserve the right to be able to contact and approach the children’s school. That was a position supported by the Independent Children’s Lawyer with the caveat that such approaches would occur when the children were not present at school (i.e. outside of school hours) and that such approaches should occur in the presence and company of the paternal grandmother.
The father was also clear that if Orders were made which did not provide for his practice of relationship with the girls at this time that he would seek to be afforded the opportunity, whether in six months, twelve months or two years, to be able to return to the Court and prove to the Court and, importantly, to the mother and children, that he was ready and able to commence a relationship with the children and to do so safely. In putting this position, the father submitted that it would be good for him to be “given a bit of time to calm down”, although, the father did not consent to the Orders sought by the Independent Children’s Lawyer, which Orders would preclude him having any contact or communication with the children.
At the conclusion of the father’s submissions concessions were made by the mother and Independent Children’s Lawyer that the father might be permitted to forward letters to the children, care of their mother and, in turn, care of the mother’s legal representative. The intent of this was to permit the father to continue to “prove himself” and “calm down” and remain in the children’s lives at least by that limited and frugal means and subject to the mother’s discretion as to the appropriateness of that correspondence being provided to or read to the children.
Chronology of events
I propose to incorporate the chronology of events provided by the Independent Children’s Lawyer. It is a largely mutualised, objective and substantial chronology of that which has occurred for these parties and, more importantly, these children. The various events referred to within the chronology are supported by the evidence as having occurred.
General/undated contentions Source Note the Mother's contentions (general and/or undated) in her affidavit as follows:
· The Father would continually be verbally abusive to Mother and would occur when the Father was either drunk or had taken drugs (or both) and he became aggressive and agitated. This sometimes occurred in front of the children.
M: [34]
· Whilst together, the Father regularly smoked marijuana and did so daily. M: [35] · During the relationship, the Father drank heavily most weekends, and would also take drugs such as ecstasy M: [36] · During the relationship the Father would make threats to kill her, she does not feel safe around the Father M: 38] - [39] Note the Father's contentions (general and/or undated) in his affidavit as follows:
· During the relationship the Mother was controlling, that each cheated on the other, that the relationship was jealous and there were often arguments.
F: [26]
· There was verbal abuse on both sides - Mother would often call Father names, put him down or swear at him. This would also occur in front of X. F: [27], [82], [83] · Parents would constantly have verbal arguments about cheating and other disagreements. There was a lot of conflict, always verbal. F: [28], [84] · He was never physically violent to the mother. He never made any threats to kill the Mother or any other threats to that effect during the relationship. F: [29] - [30], [79], [80], [81] · During the relationship, he and the Mother regularly smoked marijuana, regularly went to a rave together, took ecstasy and would sometimes drink excessive amounts of alcohol. F: [102], [104] · Father no longer takes ecstasy, no longer drinks alcohol. He denies use of amphetamines like ICE at any time. He has hardly smoked marijuana since April 2-15 - only on very rare occasions. F: [107]
Date
Event
Source
(omitted) 1987 Date of birth: Ms R (Father's partner). (omitted) 1988 Date of birth: Mr Byrne, Respondent Father (omitted) 1989 Date of birth: Ms Longford, Applicant Mother. (omitted) 2007 Parents commence relationship. F: [4]/M: [8] End 2007 Father is released from prison on parole, Queensland.
Source: Father's account to Family Consultant.Fam Report
[99](omitted) 2008 Parents commence cohabitation. M: [8] (omitted) 2009 Father is incarcerated. Mother contends they were physically separated but kept in touch. Released May 2011 M: [11] Mother contends that whilst Father in prison, Mother deposited money into his account for provisions and for phone calls to Paternal Grandmother. M: [23] 29/01/09 Father is held in custody until 22/05/11. F: [12] Offence: robbery and breach of parole.
Source: Father's report to Family Consultant.Fam Report
[99]Father contends Mother put money into his account fortnightly for six months. F: [12] Father contends X visited him regularly in prison. F: [14] 2009 Mother learns she is 6 - 7 weeks pregnant with X. M: [24] (omitted) 2009 Date of birth: X. 2011 Father attends Relapse Prevention Course, Getting Smart Program of (omitted) Correctional Centre and Managing Emotions Program. F: [123]
Ann IMay 11 Father contends Mother using marijuana daily from May 20 11 - January 2013. F: [103] Father released from prison.
Entered Jan 09.M: [11] 22/05/11 Father released from custody, on parole - to live with his sister, Ms A, (omitted). F: [12], [17] Father contends that following his release from prison in May 2011 until November 2011 the Mother and X stay overnight at least 5 times a week. F: [18] (omitted) 2011 Father contends Mother has abortion at 6 weeks gestation. F: [13] (omitted) 2011 Mother and Father fall pregnant with child - mother miscarries at 13 weeks. M: [25] Oct 11 Mother has curette, (omitted) Hospital, following miscarriage after July pregnancy. M: [25] Nov 11 Father contends family moves to (omitted) with a 6-month lease. Arguments ensue about financial problems. F: [20] (omitted) 2012 Mother contends that after difficult period they argued and fought, then reconciled. M: [12] Mother falls pregnant with Y. M: [26] 29/10/12 Father becomes unemployed. F: [22] (omitted) 2012 Date of birth: Y. c. 20/11/12 Mother contends Father loses his job and she has to return to work. M: [33] Father contends he takes on the care of Y at this time F: [25] Jan 13 Parents separate. M: [13]
F: [6]Children live with Mother. F: [33] Father contends that he found messages on Mother's Facebook between Mr J and Mr L including naked photos. This was the final straw and Father moved out. F: [32] Father finds messages when he looks on the Mother's phone. Fam Report
[102]Mother contends that in the first 12 months after separation, parents have ad hoc parenting arrangement - Father would request time and Mother would agree. Mother estimates average time spent was one day fortnightly to monthly. M: [49] Father moves to Paternal Grandmother's home. He contends he would spend time with the children every couple of days as agreed with the Mother until he moved to (omitted) (in Feb), then he would spend fortnightly time with the children from Thursday or Friday to Sunday or often Monday afternoon. This continues until December 2014. F: [34], [37] - [38]
Feb 13 Mother contends that whilst arguing, Father grabs her by the throat. Y in her arms. Mother is "really scared", begs Mr Byrne to let her go and when he does, she leaves with the children. M: [40] Father secures work and moves to (omitted), initially in shared accommodation and then a unit. F: [34] (omitted) 2013 Father commences relationship with Ms R. F: [9] 19/05/13 Mother contends she meets Father to collect children and he refuses to return her car or to pick up children. Parents have argument. M: [87] Father denies and says they were separated and did not share a car. F: [146] 20/05/13 Mother contends Father sends threatening text message. She reports to (omitted) Police Station. M: [88] - [89] Provisional ADVO is made against Father for protection of Mother M: [90]
Ann MMother contends she receives threats from Father over telephone and by text message.
Source: (5), (7) - (8) of Mother's statement to NSW Police 21/05/13
M: [91]
Ann NFather agrees he send a message to the Mother and regrets sending the text message sent to the Mother on 19/05/13 that caused her to take out the ADVO. He denies making a threatening call to the Mother on 20 or 21 May 2015. F: [86], [147], [148] Mother contends Father commenced to hack her old Facebook account, pretending to be her and abusing friends. M: [76] Father denies this. F: [142] June 13 Maternal uncle moves in with Mother and children. Mother contends this is to protect her. M: [44] 11/06/13 Mother attends Penrith Local Court. After Court attendance, Mother and Father enter parenting plan. M: [93]
Ann OFinal ADVO made, 12 months. M: [94]
Aug 13 Father moves to rented unit in (omitted) with partner Ms R - 6 month lease. F: [36] Ms R meets children for the first time. F: [36] 2014 Mother contends that there were arguments throughout 2014, but no physical violence. M: [41] Early 14 Mother contends that parents reach arrangement whereby children would spend every second weekend with Mr Byrne for 2 nights either Thursday to Saturday or Friday to Sunday. M: [54] Mother estimates that with missed weekends, Father spent about 8 - 13 weekends with children between Jan 14 - Dec 14, M: [55] 11/06/14 AVO made for Mother on 11/06/13 expires. M: [94] Nov 14 Mother's sister passes from suicide. M: [95] 25/12/14 Mother contends:
Incident occurred where Father made repeated contact with her to see children on Xmas Day. She brings children to see him. She could smell alcohol on her breath and Father was aggressive and agitated. He forcefully tried to take Y from the car, began to shout and swear at Mother and make accusations, he twisted her arm, punched her in the head and threw a rock at the car where the children were sitting. The vehicle was damaged. The Paternal Grandmother came out of the house and threatened her. Children highly distressed. Mother sustains injuries. Children remain with Paternal Family whilst Mother is conveyed to hospital by a friend. Maternal Grandfather later goes to collect children and Father and 2 others assault him .M: [96] - [109], [111] - [112]
Anns Q & R
&
Fam Report
[85] - [92]Mother makes statement to NSW Police. M: [110]
Ann P25/12/14
(cont)Father contends he called Mother to wish girls a happy Christmas. It was agreed that the Mother would drop the children to the Paternal Grandmother's home after lunch, but the Mother reneged on that agreement. She then arrived at 4:40pm by which time the Father might have had a couple of drinks but was not intoxicated. The Paternal Uncle approached to collect the children. The Mother refused to allow the children to get out of the car. Ms K was in the passenger seat. There was a dispute between the Father and Mother about the children getting out of the car. Father persisted to get Y out of the car. The Mother dug her nails into his arm, he grabbed the Mother's arm and simply twisted it off his arm. He did not punch her to the head. Father retreats for a couple of minutes. He then notices the Paternal Grandmother holding Y and X inside - he tries to distract them with presents. Mother sits in the car for 30 minutes and Father directs her to leave. About 15-20 minutes later, Maternal Grandparents and friend Ms H arrive the Maternal Grandfather knocks on the house door, and assaults Father when door is opened. Father grabs Grandfather by the shirt. Paternal Grandmother and Uncle try to break up the fight. Police are called. F: [50] - [71] 26/12/14 Date of Father's last time with children. F: [49] Police attend Father's house, Father is charged with assault.
(Pleads guilty 15/04/15)F: [73] 20/01/15 Father is charged with assault, Police apply for ADVO.
(Convicted and AVO made on 15 April 2015)M: [113] - [115] 17/03/15 Mother files initiating application. Application 15/04/15 Father pleads guilty to Christmas Day assault. Sentence: Good Behaviour Bond. ADVO made, 2 years. ADVO apparently names Mother and children as protected persons. F: [73]
Ann D21/04/15 Mother contends Father breached AVO by contacting her workplace and asking for her and by contacting pre-schools seeking Y. Mother reports to NSW Police. M: [118] 22/04/15 Mother receives telephone call to old mobile phone number. Contends caller was Father, in breach of AVO. Mother reports to NSW Police. M: [119] Father denies. F: [149] 28/04/15 Mother contends Father breached ADVO by contacting her friend and giving a threatening message. M: [120] Father denies. F: [150]
01/05/15 Response filed on behalf of Father. Response 05/05/15 ORDERS: per Judge Harman
· Contact to be made with (omitted) Contact Centre to enable assessment for suitability to be undertaken.
· Pursuant to s 69ZW, NSW Police are to provide information holdings re family violence and notifications re children.
· Pursuant to s 248 of the Children and Young Persons (Care and Protection) Act 1998, the Department of Family and Community Services is to provide a personal history summary re the children.
· ICL is appointed.
Orders. Mother contends:
· Following a court attendance Mother receives a number of calls and texts from friends and family that her old Facebook account had been reactivated.
· Father changed her Facebook name from Ms Longford to Ms L - the name of her late sister.
· Father changed her profile picture and wrote status: I think it is fair to say that my sister was a junkie she will not be missed.
· Her friend, Mr I sent her a text message - he had received a threatening message from Mr Byrne, including an image of an unknown man holding an axe.
M: [79] - [81]
Ann HFather denies this. F: [143] 06/05/15 Mother makes statement to NSW Police re alleged breaches of AVO on 21/04/15, 22/04/15, 28/04/15 and of contacts on 05/05/15. M: [121]
Ann S11/05/15 Father obtains Mental Health Plan from GP after experiencing stress, anxiety and depression. He is referred to Ms M. F: [126] 05/06/15 Father attends urinalysis - results are clear. F: [111] 18/06/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. F: [127]
Ann J
23/06/15 Mother's solicitors write to Father's solicitors:
· Declines to consent to time between children and Father;
· Children are expressing they are scared of the Father following the Christmas Day incident;
· Requests that if Father has accessed Mother's Facebook account that he cease.
M: [83]
Ann J25/06/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. F: [127]
Ann J26/06/15 (omitted) Contact Service intake note re Father:
During the intake interview the stwp stated when he found out there was a waiting list to see the children that "it's no wonder fathers breach their AVOs this is fucking ridiculous that I'm even here.M: [72]
Ann E02/07/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. F: [127]
Ann J15/07/15 ICL e-mails parties to advise that following intake assessments, (omitted) Contact Centre advised that the service is deemed inappropriate. M: [73]
Ann F16/07/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. F: [127]
Ann J20/07/15 (omitted) Contact Service writes to Mother to advise her case is on hold. M: [75]
Ann G21/07/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. F: [127]
Ann JCommunity Corrections prepares Pre-Sentence Report – Mr Byrne (sic) Mr Byrne (dob (omitted) 1988) - Attempt to Breach Prohibition/Restriction in Domestic AVO.
Note - copy is provided to Family Consultant but does not appear to have been included in Father's trial affidavit.
Fam Report
[106]30/07/15 ORDERS: per Judge Harman
· Family report to be prepared.
Orders 05/08/15 Mother contends Father contacted her old mobile number, crying and said I'm sorry for what I have done Ms Longford, tell the girls I love them and miss them, I'll see them in the next life.
Father is charged with breach AVO. (note - outcome is not disclosed in Mother's affidavit material)
M: [122] Father admits making a call to the Mother on or around 5 August 2015 although does not particularise the call. Father is charged with a breach. F: [151] 14/08/15 Mother's solicitors write to Father's solicitors:
· Informs of screenshots provided to Mother by a friend of contact purportedly by Father in breach of AVO.
M: [84]
Ann K28/08/15 ORDERS: per Judge Harman
· Per s 68B, the Father is restrained from posting to the Internet or publishing any photograph of or reference to Mother or children; any comment upon the mother, the children, these proceedings or any issue or allegation raised herein.
· The Father shall ensure all Facebook posts or other material posted by him is removed.
· Court delivers reasons.
Orders & Reasons. 02/09/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. M:
Ann AA14/09/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. M:
Ann AA29/10/15 Father attends counselling re distress at not seeing daughters and to look at some anger management issues with Ms M. M:
Ann AANov 15 Mother commences relationship with Mr Q.
Date estimated from Mother's report to consultantFam Report
[5]End 15 Father contends he completes Keeping Kids In Mind. Fam Report
[103]16/02/16 Mother contends Father breached AVO by attending X's school and this had been reported to the Police. She contends that she and the children saw him near the school, he recognised her car, looked in and waved at the children.
Source: Mother's report to Family Consultant.Fam Report
[32], [37] - [42]Father agrees he was present at the school around 3:10pm for a pre-arranged appointment with X's teacher and the School Principal. Father contends the meeting time had been set by the school. Fam Report
[126]School Principal confirms Father attended pre-arranged appointment at 3:15pm and had attended 2 previous meetings in 2015. Fam Report
[129]17/02/16 Family consultant interviews.
· A Child Dispute Services Safety Plan Protocol was enacted prior to Mother’s arrival for report and interviews.
· Children express clear wish not to meet with Father face to face.
Fam Report
p. 4
[29], fn 1.
[98]09/03/16 - 10/03/16 Mother contends Father breaches AVO and FCC orders of 28/08/15 by sending private messages re the children and photos of children to her friends. M: [123]
Ann T10/03/16 Mother reports alleged breaches to NSW Police. M: [123] 16/03/16 Father commences initial assessment and treatment with Mr C, psychologist. M:
Ann AA
F: [131]
Ann K24/03/16 Family Consultant Ms K prepares family report. Report. 30/03/16 Family report is released. Order 06/04/16 Mother contends Father breaches AVO and FCC orders of 28/08/15 by approaching and intimidating her new partner Mr Q and brother-in-law Mr C. M: [124] Father denies. He is pleading not guilty to breach charges. Charges listed for hearing 3 November 2016. F: [152] 07/04/16 Mother, Mr Q and Mr C make statements to NSW Police.
Matter remains under investigation.
M: [124]
Ann U08/04/16 ORDERS: per Judge Harman
· Paternal grandmother is joined to proceedings.
· Directions for filing and service by Paternal Grandmother.
Orders 08/04/16 Mother contends Father breaches AVO and FCC orders of 28/08/15 by contacting an old work colleague and sending message re Mother and the children. Mother reports to NSW Police.
Matter remains under investigation.
M: [126]
Ann VMother's solicitor receives email request from Father for details of Mr Q. M: [129]
Ann X09/04/16 Mother's solicitor receives email request from Father for details of Mr Q. M: [129]
Ann X12/04/16 Mother's solicitor receives email request from Father for details of Mr Q. M: [129]
Ann XMother's solicitor responds that she is instructed to provide the details to Father's new solicitor and not to Father directly. M: [130]
Ann Y14/04/16 AVO made against Father.
Source: p. 2 of order varying AVO on 19/05/15M: Ann W 19/04/16 Mother's solicitor and ICL receive e-mail (twice) from Father. Expresses hope that ICL will subpoena details for Mr Q, attaching information about parental alienation, suggesting the parental alienation information be forwarded to Mother, seeking Mother be referred for parenting course or intensive psychological counselling, recommending that orders be sought for drug testing of Mother, proposing family therapy and seeking information about the children. M:
Ann ZFather sends further e-mails (3) to Mother's solicitor and ICL requesting it be forwarded to Mother expressing personal views about various parenting disputes and other matters. M:
Ann Z17/05/16 Response and Notice of Risk filed on behalf of Paternal Grandmother. Response 19/05/16 Mother contends Father went to Court for breach re 05/08/15 and application to extend AVO. AVO is extended for 24 months. M: [128] AVO against Father extended for 2 years. AVO names Mother and children as protected persons. M: Ann W
F: [73]24/05/16 Father undertakes urinalysis. Results are clear. F: [113]
Ann G30/05/16 Father's solicitor writes to Mother's solicitor enclosing Father's urinalysis result (24/05/16), informing that Father is undergoing psychological treatment and seeking family therapy. M:
Ann AA06/06/16 Father attends intake appointment to assess his suitability to commence a domestic violence behaviour change program. Further appointment is scheduled (although date not specified). F: [134]
Ann L27/06/16 Mother contends Father attends Penrith Local Court and pleads guilty
Note charges not specified in Mother's material.M: [125] 17/08/16 Father attends urinalysis. Results not available at time he affirmed his affidavit. F: [116] 05/10/16 Matter listed for hearing.
History of the relationship and the children’s care arrangements
The parties commenced their relationship, as would be apparent from the above chronology, in (omitted) 2007 (being immediately following the father’s release from a period in prison in Queensland). The parties had known each other when they were both attending school and had been friends, although not in a relationship.
The parties commenced to live together in (omitted) 2008.
In (omitted) 2009, the father commenced a period of imprisonment in New South Wales following a conviction for aggravated robbery (which offence had involved violence). Shortly after commencing this period of imprisonment the mother became aware that she was pregnant and informed the father of this. The eldest child, X, was born whilst the father was imprisoned and X was 18 months of age when the father was released from prison (in May 2011).
Whilst imprisoned the mother took X to visit the father from time to time and provided some financial assistance to the father to ensure that he could telephone and speak with her and X.
In (omitted) 2011 (shortly after the father’s release from prison) the mother again fell pregnant. Tragically, the mother experienced a miscarriage at approximately 13 weeks and, in (omitted) 2011, underwent a curette procedure at (omitted) Hospital. The mother’s evidence is that following this procedure fighting and arguments between the parents increased.
In (omitted) 2012 Y was conceived. Y was subsequently born (omitted) 2012.
The parties separated on a final basis in January, 2013 at which time X was a little over three years of age and Y was two months of age.
The mother’s evidence, which I accept and prefer to that of the father whenever there is controversy between the two, is that the father did not, for the relatively brief periods that the parties were living together with one or both of the children, engage significantly with the children or in the day-to-day operation of the household. The mother deposes that the father, “did not spend much time with the children”[2] “would be out most of the time with his friends. He would hardly be home with us and at times would not be home for days”.[3]
[2] Paragraphs 45-47 of the mother’s Trial Affidavit.
[3] Paragraph 45 of the mother’s Trial Affidavit.
In the year immediately following the separation of the parents the mother deposes that the children spent time with the father, on average, between one day per fortnight and one day per month.[4] The mother’s evidence is that a number of difficulties applied to even these frugal arrangements, including the father’s refusal to let the mother speak with the children whilst they were in his care and refusing to advise the mother of where the children would be when in his care.
[4] Paragraph 49 of the mother’s Trial Affidavit.
The mother deposes that in early 2014[5] an arrangement was agreed between the parents whereby the children would spend each alternate weekend with their father for two nights (either from Thursday to Saturday or Friday to Sunday).[6] However, the mother deposes that this arrangement did not occur on the basis agreed and that, in reality and for the period of 12 months or so from the time that the bargain was struck and until Christmas Day, 2014, that time, in fact, occurred no more than one weekend per month.[7]
[5] Annexure O to the Mother’s Trial Affidavit is a copy of a Parenting Plan dated 11 June, 2013. That Parenting Plan provides for alternate weekend time between the father and the children from Saturday afternoon to Sunday afternoon. The agreement between the parties for alternate weekend time may, thus, have occurred earlier than “early 2014”. In any event, the balance of the mother’s evidence as to the infrequency of time notwithstanding any agreement is not immediately impacted. The Parenting Plan would appear to have been negotiated at Court on the date the parties attended at a Local Court for the first ADVO between them.
[6] Paragraph 54 of the mother’s Trial Affidavit.
[7] Paragraph 55 of the mother’s Trial Affidavit. The mother’s evidence is that between 8 and 13 weekend periods occurred between January 2014 and December 2014.
The father’s involvement with these children up to and until Christmas Day, 2014 was extremely limited. The father was absent for the first 18 months of X’s life. Thereafter, the parties had lived together with X and subsequently, albeit a period of two months only, with Y being the period between the father’s release from prison (May, 2011) and until January, 2013 (a period of approximately 18 months in total). Following separation and for a period of two years, the father’s time with the children occurred approximately monthly and on no more than 8 to 13 occasions, this included overnight stays.
In the above circumstances, there is no reason to doubt that opined by the Family Report writer that Y, in particular, has little relationship with the father and that X’s relationship with the father is strained. This is particularly so when regard is had to the history of violence within the relationship between the parents, which violence did not cease with the separation of the parents, and to which violence these children have been fundamentally and significantly exposed as will be discussed below.
Since Christmas Day, 2014 (an event of particular significance that is discussed in some detail below) the children have spent no time with the father and have not communicated with him.
In June, 2015 and following an Order by the Court both parties attended upon the (omitted) Contact Service to enable an intake assessment to be undertaken as to whether the parties might be offered assistance through that service. Both parties attended appointments (on the 25th and 26th of June 2015 respectively). The service declined to assist the parties having formed the view that it would be inappropriate for the parties to use the service.
The intake assessment notes and typed material as to the assessment of suitability is tendered. From the notes of the father’s intake session it is clear that:
a)The father denied that there had ever been violence between the parties “except the incident at Christmas time when the [father] alleges the [mother] assaulted him by sticking her nails into him”. Such a statement by the father is entirely inaccurate and demonstrates a concerning lack of insight, at least at the date of assessment, into his behaviour on Christmas Day (which events are discussed below);
b)The father, upon being advised that service could not commence immediately and that there was a waiting list, commented, “It’s no wonder father’s breach their AVO’s. It is fucking ridiculous that I’m even here”;
c)The father was living with his partner in (omitted) at the time of the intake assessment. The father and his partner subsequently moved to the far (omitted) and were living on the far (omitted) when the Trial of these proceedings commenced. The father has subsequently returned to the Sydney area and now lives in rental accommodation at (omitted).
The mother’s intake assessment notes disclose the mother’s significant concern as to the father’s past violence (towards her and others) as well as concerns as to the father’s alleged drug use, including binge drinking of alcohol, substantial and chronic use of cannabis and use of methamphetamine.
During intake, the mother made reference to past reports to the Department of Family and Community Services by the children’s Day Care Centre. Importantly the mother disclosed:
If he [the father] does not get supervised contact of his children he will come after her and kill her. He is said to have told friends that if I don’t see my kids I will go after her and I will get them and I don’t care if I go back to gaol. [The mother] is threatened he will kidnap the children or run from the centre with the children as the centre is not a locked facility and she is scared she will never see them again. [The mother] is concerned he is not mentally stable as he does not care about the AVO or what the family Court says if they tell him he can’t get what he wants he will just do it illegally he has no fear of going to gaol or the Police or the Courts. [The mother] reports the children have only just started playing in the backyard again. The [mother] broke down when she stated my best friend was at my house last weekend and said to me it’s so good to see your kids playing out in the sun like normal children. [The mother] reports they get scared at noises thinking he’s [father] going to come and get me again.
History of proceedings
These proceedings first came before the Court on 5 May, 2015. On that date both parties appeared and were represented. Orders were made which required that the parties contact the (omitted) Contact Service to arrange and attend the first available and offered intake appointment to enable an assessment of suitability for the parties to use that service for supervised visits. The Order was made as the allegations of family violence that were raised in the matter were severe and whilst the mother opposed any time it was clear that a consideration of supervision would be necessary if any time were to be contemplated at Interim Hearing.
Orders were also made obtaining or commissioning evidence from various sources, including an Order pursuant to section 69ZW of the Family Law Act 1975, addressed to New South Wales Police, a request for the provision of a Personal History document by the Department of Family and Community Services, (being a request made pursuant to section 248 of the Children and Young Person’s (Care and Protection) Act 1998 (NSW)) as well as the appointment of an Independent Children’s Lawyer. The proceedings were otherwise adjourned for possible Interim Hearing.
The matter next came before the Court on 30 July, 2015. On that date, the Independent Children’s Lawyer appeared for the first time and the matter proceeded as an Interim Hearing. Orders were made at the conclusion of that Interim Hearing and after a consideration of the evidence filed (including the material that was tendered) and submissions. The Orders made were as follows:
a)That a Family Report be prepared;
b)That the proceedings be adjourned to a further date for mention and directions after the anticipated release of the Report;
c)That the father provide samples for forensic testing with respect to the presence of certain named substances and that such testing occur no more than twice per calendar month;
d)It was noted that if testing did not occur as requested and ordered that a Jones & Dunkel (1959) 101 CLR 298 inference adverse to the father would, in all probability, be drawn;
e)That all Interim Applications be otherwise dismissed.
As would be apparent from the above, no positive Order was made which provided for time or communication between the children and their father. That arose on a number of bases, the most significant of which was the tender of material produced by the (omitted) Contact Service. That material comprised the intake assessment notes following interviews with each parent and as discussed above.
The proceedings next came before the Court on 28 August, 2015, being some six months prior to the anticipated availability of the Family Report. It must be observed that the Family Report prepared in these proceedings could not be obtained for some 10 months from the date of its commissioning. That is through no fault of the hard-working staff of the Family Consultancy service of the Court. It is purely a reflection of the limited resources that are available.
As a consequence of the delay in obtaining the necessary Family Report, the determination of the affairs of this family, particularly in circumstances whereby an Interim determination had been made that no Interim Order could safely be made to facilitate a relationship between the children and their father was severely delayed. This is a concern for any family but especially a family with respect to which significant allegations of family violence are raised. As was commented by Victorian Coroner Judge Gray[8] “…delays such as these, particularly when combined with other delays within the system, can lead to an escalating risk of escalating problematic behaviours on the part of the perpetrator”.[9] The relisting of the proceedings on 28 August, 2015 was, very much, an escalation of problematic behaviours on the part of the father being the perpetrator of family violence.
[8] Inquest into the death of Luke Geoffrey Batty, at paragraph 124.
[9] Findings will be made, as will be discussed, that the father perpetrated family violence upon the mother and including in the presence of the children. It is on that basis that the reference to “perpetrator” is retained.
The matter came before the Court on 28 August 2015 as a consequence of a request by the Independent Children’s Lawyer to relist the proceedings and with a view to addressing “issues of concern” that were suggested to have arisen. Those “issues of concern” related to the posting by the father upon Facebook of certain material. That material and the Application for restraint of such postings was the subject of a separate Judgment delivered by the Court.[10] That Judgment need not be incorporated within these reasons and stands alone in addressing and dealing with that discrete issue. It is sufficient to record that the father’s post had included a photograph of the mother with the children and had referred to the mother as a “child thief”. Within the post the father gave an indication of the mother’s address and general whereabouts and had requested anyone viewing the public post to approach the mother and seek to interrogate her as to why she did not permit the children to have contact with their father.
[10] Longford & Byrne [2015] FCCA 2504.
The father did not appear when the Independent Children’s Lawyer made the above oral Application (although his then solicitor appeared) and the Application was determined and injunctive relief granted as sought. Orders were made pursuant to section 68B of the Family Law Act 1975 restraining the father from posting to the internet or publishing by any other means whatsoever:
a)Any photograph of the mother or children;
b)Any reference to the mother or children; and,
c)Any comment upon the mother, the children, these proceedings or any issue or allegation raised therein.
In addition, the father was ordered to forthwith remove such posts as he had already placed on Facebook.
The above posts are somewhat consistent with activities in which the father was engaged at that time. Whether the father continues to engage in those activities or not need not be addressed by these reasons. The father had become involved with an association focussed upon the advance of “father’s rights”.[11] To that end, the father has attended and engaged in a number of protests at and about Registries of this Court and the Family Court of Australia as well as at other places, protesting under the banner #notyourright.
[11] There is no controversy that the Family Law Act 1975 does not contain or provide for the rights of parents. The Act provides for the rights of children (see section 60B of the Act). Parents have duties and responsibilities rather than rights. It is the duty and responsibility of parents to acknowledge, advance and protect the rights of their children. The rights of children, especially to the extent that the principles set out in section 60B(2) of the Act might be styled or described as “rights”, are not absolute. The rights provided by section 60B(2) of the Act are subject to the caveat that such rights are not enlivened nor practiced when to do so would be contrary to the child’s best interests. Parents have but two rights, namely, a right to be treated with dignity (as provided by Article 1 of the Universal Declaration of Human Rights 1948) and a right of due process. Even the right to due process, as observed by Justice Forrest in Gordon & Gordon [2015] FamCA 616 might, in extraordinary circumstances, be impacted or required to yield to the child’s best interests. All other rights as may arise in this and other parenting cases reside with and vest in the child and as set out in the International Convention on the Rights of the Child incorporated, as that Convention is, within the objects and principles of the Act (section 60B(4)).
It is unclear what right it is suggested the mother did not possess. Certainly, the mother had a right – if it might be so described – and, if not, an obligation and responsibility – to ensure that the children were well-parented and safe. The totality of evidence, as will be discussed, clearly demonstrates that the mother has, at all times, discharged those duties and responsibilities and has kept these children safe.
Certainly, it was not the father’s “right” to assault the mother or to assault the mother in the presence of these young children, as he has, thereby causing them distress, trauma and fear. Those issues will be returned to but are observed at this point purely in the context of the Application then made by the Independent Children’s Lawyer.
The matter was then next before the Court on 8 April, 2016. Immediately prior to that Court event, the Family Report had been completed and had been released to the parties and the Independent Children’s Lawyer by an Order made in Chambers 30 March, 2016.
On 8 April, 2016, an Order was made for the joinder of the grandmother as a party to the proceedings and the proceedings were listed for Hearing as a three-day fixture, 5 to 7 October, 2016. Trial preparation Orders were made and which need not be recited. The grandmother had been involved in the Family Report interviews and no amendment or addendum to the Family Report was sought or required.
The Trial of the proceedings commenced on 5 October, 2016 and consumed the three days which had been allocated. On the third day of Hearing it became clear that the matter would not and could not be concluded. That was not necessarily through any fault of the parties. Portions of each day of Hearing had been lost to the conduct of other business before the Court, as is a common event.
At the conclusion of the third day of Trial, Orders were made on a consent basis to facilitate the participation of the mother, father and children in a family therapy process to be arranged and case managed by the Independent Children’s Lawyer. The proceedings were otherwise adjourned for further mention and directions, with some optimism that the therapeutic process might be of assistance to this family in addressing the children’s suggested anxieties regarding their father and in moving towards agreement between the parents.
It was noted at the time of adjournment of the Hearing that if all issues were not resolved that further Hearing time would be required. Importantly, it was also noted that there was a current enforceable Apprehended Domestic Violence Order (ADVO) in force, under which the mother and children were named as Protected Persons (PINOPS) and the terms of which enforceable ADVO precluded contact between the father and the protected persons (including the children).
When the matter returned before the Court on 23 January, 2017 it was apparent that a resolution had not been achieved and was unlikely. As a consequence, further Hearing dates were fixed for the proceedings. The dates initially allocated were varied due to illness but the further and concluding Court events, 30 and 31 March, 2017 occurred within a fortnight of the dates originally fixed.
Immediately after the allocation of the further Hearing dates and on 25 January, 2017 the father attended what transpired to be the final appointment with the family therapist with whom the parents were engaged, namely, Mr R.
I do not seek to repeat the criticisms that have been made of the father’s attitude towards his responsibilities as a parent. The criticisms are set out in some detail above.
This factor supports the relief proposed by the Independent Children’s Lawyer.
Family violence and family violence orders
The evidence relating to these factors is set out in detail over many pages of this Judgment. Suffice to observe that family violence is a matter of such magnitude in these proceedings as to be, to a large extent, the fulcrum upon which the determination of the children’s best interest’s balances.
I do not propose to repeat the extensive discussion of the father’s family violence. I accept that violence has occurred and has had a significant and profound deleterious effect upon the mother and upon these children. The findings of unacceptable risk that are made above have their genesis in the significant and unacceptable family violence perpetrated by the father towards the mother and which built to and culminated in the events of Christmas Day, 2014.
An extensive family violence Order remains on foot and which imposes prohibitions upon the father protecting the mother and both children. The Domestic Violence Order precludes the father from contacting the mother or children, save pursuant to any Order for counselling, mediation or conciliation. I do not propose to make any such Order nor any Order in favour of the father.
This factor and the findings of unacceptable risk that flow from the evidence with respect to this factor overwhelmingly supports the Orders proposed by the Independent Children’s Lawyer.
Whether it is preferable to make orders that will least likely lead to the institution of further proceedings
During the course of the proceedings Orders have been made under Part II of the Act requiring the parties to engage in family counselling services. The parties have also engaged in non-family counselling therapeutic services with Mr R.
Family counselling Orders have been made not only to fulfil the requirements of section 65F of the Act but to endeavour to assist the parties through providing them with support and assistance with personal and interpersonal issues and matters arising from their relationship and separation. Such services might well have assisted the parties in improving communication or in developing insight. In this case, they have had little, if any, benefit at least for the father.
Beyond the above Orders which have been complied with by each parent, I do not propose to make any further family counselling Order or require these parties to engage in any further course, program or service. There remains much work to be done. Whilst an excellent Post Orders Intervention Program is available through Uniting Counselling and Mediation Unifam to assist parties in implementing and working with Final Orders, that program would not appear appropriate in this case and as there will be no Order for the children to spend time or communicate with their father. In those circumstances, such a referral might generate a “false hope” for the father, needlessly burden one or both of these parents with a program and commitments that they will receive little benefit from in light of the Orders to be made or simply continue the emotional cost that these proceedings have extracted from each parent and whilst taking a valuable place in a program which place would be better used by others with ongoing parenting arrangements that require support. The work that needs to be done is work that largely needs to be undertaken by the father. The father has expressed a desire and commitment to seeking such assistance and to do so without the need of any Order from this Court.
I am not satisfied that anything further could be done which would avoid future proceedings. Future proceedings are anticipated by the father who has indicated at one point his intention to Appeal to the Full Court in the event that Orders are not made for him to spend time with the children. The father also indicated during submissions that he would seek to bring a fresh Application in 6, 12 or 24 months and after he has done work to “cure himself” as it were.
As already discussed, I do not believe that it would be appropriate for me to impose any restraint upon the father commencing fresh proceedings. I am not satisfied that there is any Order that I could appropriately make that would permit or facilitate the filing of an Application by the father or its determination without objection or opposition by reference to Rice & Asplund.
Conclusion
For the above reasons, I am satisfied that the best that can be done to meet and address the best interests of these children is to make Orders predominantly as sought by the Independent Children’s Lawyer. A minor variation to one of the Orders, (which would restrain the father from attending at or having contact with the children’s school), was sought by the father and that variation is not opposed by the Independent Children’s Lawyer. I propose to accede to that variation as it is important for the father’s therapeutic assistance that he is able to at least obtain information with respect to the children’s schooling. It is also important for the children to know that their father maintains an interest in them and a desire to continue to be a part of their life, albeit distant rather than direct. Even though X has expressed some disquiet as to her father attending at her school, the evidence would not suggest that X would be disadvantaged by the father attending at the school when X and the mother are not present.
I otherwise propose to note the father’s expressed intent to bring a fresh Application in the future. It will be a matter for the father to bring that Application at a time of his choosing. The Application will be listed before a Judicial Officer. The matter may not return to my Docket. Other than noting that the Application may well be brought, all issues pertaining to the Application such as its merit, the evidence led by the father to support a change in circumstances and the mother’s attitude to the Application, including whether she desires to raise a Rice & Asplund issue, would best be determined at the time that the Application is filed.
For the reasons set out above, I am satisfied, however, that Orders should be made substantially in accordance with the Minute of Order tendered by the Independent Children’s Lawyer at the conclusion of evidence. Accordingly, Orders are made as set out at the commencement of this Judgment.
I certify that the preceding three hundred and forty-two (342) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Date: 21 April 2017
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