LOWRIE & BAGLEY
[2013] FamCA 487
•26 June 2013
FAMILY COURT OF AUSTRALIA
| LOWRIE & BAGLEY | [2013] FamCA 487 |
| FAMILY LAW – CHILDREN – Children to live with the mother – Injunction restraining the father from approaching the children’s school or mother’s residence – Children at risk of harm through exposure to abuse and family violence in the care of the father – the need to protect the children from the father outweighs any benefit they may derive from having a meaningful relationship with him – father has a history of perpetrating family violence upon the mother and a history of illicit drug and alcohol abuse – where the father did not participate in the proceedings FAMILY LAW – CHILDREN – Parental responsibility – sole parental responsibility allocated to the mother – where the presumption of equal shared parental responsibility was rebutted by the evidence of family violence |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CC, 60CG 61DA, 62B, 65AA, 65CA, 65DA, 65DAA , 65DAC, 65DAE, 68B and 114 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Amador v Amador (2009) 43 Fam LR 268 AMS v AIF (1999) 199 CLR 160 B & B [2003] FamCA 274 B & K [2001] FamCA 880 Goode & Goode (2006) FLC 93-286 Khalil & Tahir-Ahmani (2012) FLC 93-506 Marriage of JG & BG (1994) 18 Fam LR 255 Marriage of Blanch (1998) 24 Fam LR 325 McCall v Clark (2009) 41 Fam LR 483 MRR v GR (2010) 240 CLR 461 Sampson v Hartnett(No 10) (2007) FLC 93-350 Taylor v Taylor (1979) 143 CLR 1 |
| APPLICANT: | Ms Lowrie |
| RESPONDENT: | Mr Bagley |
| FILE NUMBER: | NCC | 319 | of | 2013 |
| DATE DELIVERED: | 26 June 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Mr Bithrey, Burke Elphick & Mead Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
The mother shall have sole parental responsibility for the children B, born … March 2005, and C, born … April 2006 (“the children”).
The children shall live with the mother.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by either child.
Leave is granted to the mother to provide a sealed copy of these orders to:
(a)The principal of any school attended by either child; and
(b)The police, in circumstances of any alleged breach of Order 3 hereof by the father.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all outstanding applications are dismissed.
Notations
(A)Whether the children spend time or communicate with the father, and the circumstances under which they may do so, will be determined by the mother as an incident of her sole parental responsibility for the children.
(B)These orders are consistent with the terms of the apprehended violence order made against the father for the protection of the mother by the Local Court of NSW at … on 5 March 2013 and varied on 14 May 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowrie & Bagley 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 NEWCASTLE |
FILE NUMBER: NCC 319 of 2013
| Ms Lowrie |
Applicant
And
| Mr Bagley |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties separated long ago in July 2008, after a harrowing relationship beset by the father’s illicit drug use and his violent coercion of the mother. At that time their children were aged only three and two years respectively.
For some two years after their separation the parties generally implemented an arrangement under which the children spent alternate weekends with the father, which arrangements were later expanded to include portions of school holiday periods.
The father last availed himself of those informal arrangements in December 2011 when, during a visit, the father summoned the mother to collect the children from him earlier than agreed. The father attended to see the eldest child commence his first day at school a month later in January 2012, but the children have spent no time with the father since.
The father contacted the mother in November 2012 demanding his re-introduction to the children, but she denied it. The mother commenced these proceedings in February 2013 seeking orders to formalise her control of the parenting arrangements and to exclude the father from the children’s lives.
Without offering any explanation as to why, the father refused to participate in the proceedings. The mother’s application was therefore listed for undefended hearing and determined in the father’s absence. In such circumstances, there was no option other than to accede to the mother’s proposal, but in most respects it was vindicated by the evidence in any event.
Absence of the father
The father was served with the mother’s application and affidavit material on 19 February 2013 at Town A, NSW,[1] in the vicinity of his last known residential address in that township.[2]
[1] Affidavit of Service filed on 21/2/13
[2] Mother’s second affidavit, para 2
The father’s service with those documents alerted him to the matter being listed before the Court on 12 March 2013. The father appeared at that Court event by telephone and was self-represented. On that occasion the Federal Magistrates Court (as the Federal Circuit Court then was) transferred the proceedings to this Court.[3]
[3] Order 1 made on 12/3/13
The father was ordered to file his Response and a Notice of Address for Service,[4] but he failed to ever do so.
[4] Orders 2-3 made on 12/3/13
The following day, on 13 March 2013, an order was made for the parties to appear before this Court on 24 April 2013, but there was no appearance by or on behalf of the father at that time. The proceedings were therefore listed for undefended hearing on 13 June 2013 and the mother was ordered to notify the father of the hearing date and the consequences of his non-appearance.[5]
[5] Orders 1-2 made on 24/4/13
The contents of the mother’s affidavit filed on 4 June 2013 prove that the mother did all she could to notify the father of the hearing date in accordance with the procedural orders, and further, that the father was aware the matter could be concluded on 13 June 2013, even in his absence.
The father failed to appear at Court on 13 June 2013 and the hearing therefore proceeded in his absence.
I am satisfied the father was accorded procedural fairness. He cannot complain about any miscarriage of justice when he voluntarily abstained from participation in the proceedings. The court is not required to indefinitely delay a hearing merely because a party declines to appear and participate (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Mother’s proposal and evidence
The mother pressed for the orders set out within her Initiating Application filed on 15 February 2013. Generally, she proposed the children continue to live with her, she have sole parental responsibility for them, and that the father be permanently eliminated from their lives.
The mother relied upon:
a)The affidavit of service filed on 21 February 2013;
b)Her affidavit filed on 15 February 2013; and
c)Her affidavit filed on 4 June 2013.
Since the father was not present to challenge any of the mother’s evidence, it must be accepted as true and correct on the balance of probabilities unless it is inherently improbable. None of her evidence could be so characterised.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC). These proceedings were commenced on 15 February 2013 and so the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 now apply (see Schedule 1, items 44 and 45).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of children – primary considerations
Section 60CC(2)(a)
The two children are now aged eight and seven years respectively.
They have lived continuously with the mother, from which I impute they are primarily attached to her. Self-evidently, any orders made by the Court must preserve and promote the meaningful relationships the children enjoy with her.
The children do not presently have meaningful relationships with the father. They have not spent time with him since December 2011, other than for some transient interaction in late January 2012 at the eldest child’s school while the children were also in the company of the mother.
The children were present when the father attended the mother’s home many months later in November 2012 and demanded to see the children by saying to the mother “give me my fucking kids”. The demeanour of the father and the nature of his discourteous demand no doubt led the children to correctly impute he was aggravated. They responded with fear by running to their bedrooms, crying, saying “go away”.[6] Such behaviour by the children, after their abandonment by the father for nearly a year, suggests their relationships with him have corroded.
[6] Mother’s first affidavit, paras 70-71
Perhaps the children are alive to the mother’s fear and loathing of the father and so their attitudes towards him are now influenced by their knowledge of the mother’s attitude. Even if that is so, the negativity of the mother’s attitude towards the father is hardly surprising in light of her past experiences with him and the children’s correlative attitudes towards the father are similarly understandable.
The Act requires the Court to prospectively consider the benefit which might be derived by the children from sustaining meaningful relationships with the father into the future (see McCall v Clark (2009) 41 Fam LR 483 at 509-510), so questions arise as to whether the children’s deteriorated relationships with the father are capable of revival, and even if capable of revival, whether they should be.
Even if the children’s relationships with the father could be satisfactorily restored, the evidence mandates a conclusion that no attempt should be made to try. That is because the children’s protection from harm is a consideration of higher priority than any benefit they may derive from the recovery of their relationships with the father (s 60CC(2A)). Such a conclusion flows from the evidence addressed to the risk of harm posed by the father, which is relevant pursuant to s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
The evidence of family violence perpetrated by the father upon the mother, both during cohabitation and since separation, was horrendous.
The mother alleged the father forcibly had sexual intercourse with her about twice per week throughout their relationship, even during her pregnancies.[7] Whenever she resisted he slapped or punched her on the torso and legs.[8]
[7] Mother’s first affidavit, para 14
[8] Mother’s first affidavit, para 19
On one particular occasion shortly after the birth of the eldest child the mother was still recovering from an episiotomy with stitches in her genitals. Against her protest, the father pinned the mother to the bed and forced her legs apart so as to engage in intercourse, which caused the mother’s genital flesh to tear from the stitches and bleed. When informed of her injury shortly afterwards the father told the mother “I don’t care. I’ve got what I wanted”.[9]
[9] Mother’s first affidavit, para 22
The father’s violence pervaded the parties’ relationship and was not confined to instances of sexual relations.[10] He frequently struck, pushed and threatened the mother. She estimated that occurred two to three times per week throughout their relationship and was precipitated by such minor grievances as the mother not having his dinner ready or the children crying.[11]
[10] Mother’s first affidavit, para 23
[11] Mother’s first affidavit, para 26
On one particular occasion in January 2006, while the mother was pregnant with the second child, the father pinned the mother against a wall by holding her throat with his hands. The mother struggled free and ran for the telephone to call for help. The father grabbed the phone and threw it against a wall causing it to smash apart. He then slapped the mother across the face and pulled her to the ground by the hair. At least some of that incident was witnessed by the eldest child, who was still then only a baby.[12] The father was later charged, convicted and fined for his assault upon the mother on that occasion.[13]
[12] Mother’s first affidavit, paras 28-29; Exhibit M3
[13] Mother’s first affidavit, para 30; Exhibit M4
On another occasion in 2007 the father arrived home intoxicated at about 4.00 am. He exchanged harsh words with the mother before secreting himself in the laundry. In the belief the father was smoking cannabis and would assault her afterwards, the mother gathered the children and loaded them into the car so she could escape. As she was doing so she suddenly felt the sensation of cold steel against her throat and heard the father say “If you don’t get those fucking kids inside now I will kill the kids in front of you and then I will kill you. If I can’t have you no one else will”. The mother turned to face the father and saw he was armed with a boning knife from the kitchen with a blade about 20 centimetres in length. In fear, she and the children returned to the house.[14]
[14] Mother’s first affidavit, paras 32-39
The father often threatened the mother with physical harm if she divulged the violent and oppressive manner in which he treated her, telling her “I’ll slit your throat” and “I will break your jaw”.[15] The father’s threats to the mother continued after their separation.[16]
[15] Mother’s first affidavit, para 21
[16] Mother’s first affidavit, paras 58-61, 67
Following the parties’ separation in July 2008 the mother allowed the children to spend unsupervised time with the father despite her apprehension of him. There were a number of reasons for that, but principally, the mother was fearful the father would abduct the children if she was resistant. The father told her “If you don’t let me see the kids, I will run off with them and nobody will ever find us. You will never see them again”.[17]
[17] Mother’s first affidavit, paras 48-50
The father’s propensity to act violently to achieve his ends was not confined to the family relationship. It was characteristic of his general demeanour. The evidence revealed that as recently as June 2012 the father entered the property of a woman with whom he was engaged in a dispute over chattels and a debt, whereupon he intimidated and physically threatened her. That episode occurred in the presence of the woman’s children. The police were summoned to the incident but no criminal prosecution resulted.[18]
[18] Exhibit M2
The father’s most recent threats of harm to the mother in November 2012 caused her to contact police, who sought an apprehended violence order for her protection from him.[19] The interim apprehended violence order against the father for the mother’s protection was made final on 5 March 2013 for a period of two years, but was subsequently varied on 14 May 2013.[20]
[19] Mother’s first affidavit, paras 67-68
[20] Exhibit M1
The terms of that family violence order are very restrictive. The father is forbidden from approaching the mother’s home and the children’s school. He is also forbidden from contacting the mother other than in closely confined circumstances.
Although the evidence does not disclose the basis for it, the father sought an apprehended violence order for his protection against the mother. An interim order was made, but there is no evidence as to how those proceedings were concluded.[21] It is unknown whether a final apprehended violence order was made in the father’s favour, but most probably not, because there is no evidence of the mother believing she is now bound by any such order.
[21] Mother’s first affidavit, para 69
The father’s antipathy towards the mother does not appear to have abated, notwithstanding their separation some five years ago. The mother remains at unacceptable risk of subjection to family violence committed by the father (s 60CG). The evidence also demands a conclusion that the father poses an unacceptable risk of harm to the children, which risk arises from his willingness to perpetrate family violence upon the mother. The children’s observation or awareness of such family violence would surely be psychologically damaging to them.
The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be relevant to parenting proceedings if it is directed at the children or takes place in their presence. Violence associated with a pattern of dominance by one parent over another, of which the children are aware, is particularly insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance through awareness of such abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33]-[37]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmani (2012) FLC 93-506 at [189]).
In addition to the issue of the children’s prospective exposure to family violence, the mother fears their subjection to physical abuse by the father. She deposed to the youngest child reporting to her in June 2010 that he was bruised as a consequence of being “smacked” by the father.[22] However, given the mother’s continued willingness after that incident to allow the children to spend unsupervised time with the father and the absence of any report by her to the authorities, the abbreviated evidence of that isolated incident is insufficient to prove the existence of an unacceptable risk of the children’s physical abuse.
[22] Mother’s first affidavit, para 51
Best interests of children – additional considerations
Historically, the father was a heavy user of cannabis and liquor. Throughout the parties’ cohabitation the father went out to socialise and consume alcohol about three to four times each week[23] and he used cannabis on a daily basis.[24]
[23] Mother’s first affidavit, paras 8-9
[24] Mother’s first affidavit, paras 10-12
Several years have now elapsed since the parties’ separation. While the mother is plainly unable to depose to the father’s use of alcohol and drugs since their separation, there is no evidence the father has changed his habits about the frequency of his intoxication.
The children are reluctant to interact with the father and are apprehensive they will be abducted by him.[25]
[25] Mother’s first affidavit, paras 71-72
The father has perpetuated his absence from the children’s lives for a protracted period, now approximating 18 months in duration. Apart from spasmodic contact with the mother, which is habitually intemperate, he has disengaged from the children’s lives. He has not participated, nor sought to participate, in any significant decision affecting their lives. He has effectively surrendered parental responsibility to the mother. There is no evidence of his current or past financial contribution to their support.
The orders proposed by the mother will effectively formalise the parenting regime which has been in place since December 2011. Clearly, in view of the father’s voluntary withdrawal from the children’s lives and his abstention from participation in these proceedings, continuation of that regime is the outcome least likely to lead to the institution of further proceedings in respect of the children.
Other than as already addressed, no evidence was adduced and no submission was made by the mother in respect of any other factor prescribed under s 60CC(3) of the Act.
Conclusions and Orders
The evidence of acute family violence means the presumption of equal shared parental responsibility does not apply (s 61DA(2)).
The mother’s fear of the father, borne of her past unfavourable experiences with him, renders it impractical for her to share parental responsibility for the children with the father. She could not, and should not be expected to, consult with the father over matters of long-term importance to the children. Even if she was willing and able to do so it is impractical to expect it of her. The father apparently has no interest in participating in decisions of long-term importance to the children, and in any event, even if he was interested the mother is precluded from conferring with him because his whereabouts are unknown.
The only viable option is for the mother to have sole parental responsibility and for the children to live with her.
The risk of harm posed to the children by the father is too pronounced to presently permit their interaction with him. That consideration outweighs the desirability of their re-engagement with the father in the hope of them deriving benefit from meaningful relationships with him.
Even if that were not so, it would be pointless making orders stipulating the nature of the children’s interaction with the father because of his apparent disinterest in them and the outcome of these proceedings.
No injunction is made permanently precluding the children’s interaction with the father. The children are still young. As they age and mature they will become more independent and may acquire interest in seeking out the father to investigate whether they wish to recover their relationships with him. Whether and how the children re-establish contact with the father in the future will be determined by the mother as an incident of her sole parental responsibility for the children.
The orders restrain the father from attending near to the mother’s home and the children’s schools so as to prevent frustration of the mother’s exercise of sole parental responsibility. It is consequently appropriate to permit the mother to furnish a copy of the orders to the principals of the children’s schools.
The mother conceded it was inapposite to make an injunction in accordance with Order 4 proposed in her Initiating Application.
It is unnecessary to make an injunction in accordance with Order 8 proposed in the mother’s Initiating Application. The mother already has the protection of an apprehended violence order, the terms of which are highly restrictive. The proposed order would only replicate the terms of the existing apprehended violence order, but would instead apply permanently. Moreover, the proposed order would require the mother to permanently retain a solicitor in case the father desired to contact her.
The mother acknowledged that proposed Order 9 in her Initiating Application is not an order at all, but rather a notation. I am not satisfied it is desirable for the Court to make a notation in those terms, which would be liable to interpretation by the father as a threat against him by the Court. There is no evidence before the Court the father has not complied with the apprehended violence order imposed upon him by the State court. Instead, the mother is given leave to furnish a copy of the orders to police if the need arises for her enforcement of the orders.
The mother abandoned her application for Order 3 in her Initiating Application.[26] She was correct to do so. An order framed in terms “permitting” a parent to relocate to another region with the children is not a parenting order within the meaning of s 64B of the Family Law Act, nor is it a mandatory or restrictive injunction under ss 68B or 114 of the Act (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Hartnett (No 10) (2007) FLC 93-350).
[26] Notation D made on 24/4/13
I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 June 2013.
Associate:
Date: 26 June 2013
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