MCKENZIE & ABBOTT

[2015] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCKENZIE & ABBOTT [2015] FCCA 692

Catchwords:
FAMILY LAW – Family violence – best interests of the child – need to protect mother and child from further family violence.

Goode & Goode (2006) FLC 93-286

Applicant: MS MCKENZIE

Respondent: MR ABBOTT

File Number: MLC 2559 of 2014

Judgment of: Judge Curtain

Hearing date: 3 March 2015

Date of Last Submission: 3 March 2015

Delivered at: Melbourne

Delivered on: 30 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Southey

Solicitors for the Applicant: Frid & Associates

Counsel for the Respondent: No appearance by or on behalf of the Respondent

Solicitors for the Respondent: Self represented

Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001)

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility for the child X born (omitted) 2011 (“X”), subject to the Mother informing the Father by email of any long term decision about X’s schooling and/or health once made, as soon as practicable.

3. X live with the Mother.

4. X spend time with the Father as agreed between the parties via email communication (noting that the Mother’s email address is (omitted).

5. Commencing 8 April 2015, X communicate with the Father by telephone each alternate Wednesday evening between 5.30pm and 6.00pm, and the Mother be at liberty to monitor the phone calls by using the speaker phone option.

6. The Mother be at liberty to terminate a phone call early in the event of any inappropriate conduct by the Father, and in the event of X becoming reluctant to speak to the Father.

7. The lawyers for the Mother forthwith cause a sealed copy of this Order to be personally served on the Father.

8. When Judge Curtain’s reasons for these Orders are released, the solicitors for the Mother forthwith forward a copy of the reasons to the Father by ordinary pre-paid post.

9. Pursuant to s.68P of the Family Law Act 1975, the Court declares that Orders 4, 5 and 6 of these Orders may be inconsistent with any family violence order.

10. All extant applications be otherwise dismissed.

IT IS DIRECTED THAT:

1. The Minute of Orders proposed by the Mother be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

A.The Father was called outside Court at 9.45am and there was to response to the call by or on behalf of the Father.

B.Counsel for the Mother advised in open Court that the Father is currently *remanded* reprimanded in custody and will do not attending Court this day.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2559 of 2014

MS MCKENZIE

Applicant

And

MR ABBOTT

Respondent

REASONS FOR JUDGMENT

1. The applicant mother, Ms McKenzie filed her material on 26 March 2014 seeking parenting orders in relation to her daughter, X born (omitted) 2011 (“X”), whom the father is Mr Abbott.

2. The parties commenced cohabitation around (omitted) 2009 for about four weeks and then separated.  They reconciled and separated a number of times until they finally separated on 5 February 2014.

3. The mother is aged 35 years and the father is aged 36 years.  The parties were never married.

4. The father has one child from a previous marriage, Y, who was about 4 or 5 years old at the time the parties initially developed a relationship.

5. Although the father had told the mother that he had previously been gaoled for assault, she sought a relationship with him.  Further she detailed in her affidavit affirmed 26 March 2014 that one evening during the initial four weeks of cohabitation she, “…moved out after this time because Mr Abbott had attended my place of work in (omitted) in an intoxicated and agitated state and I decided to stay at my girlfriend’s place that night.  Mr Abbott rang me that night about 30 times, abusing and threatening me.  I came home the following morning to find my bed head destroyed, my mattress slashed, my stereo broken and the headlights of my car kicked in.  I asked Mr Abbott what had happened.  He told me that he had been play fighting with his friend.  He denied damaging the stereo and my car altogether.  I did not believe Mr Abbott.  I knew that he had caused all the damage and I moved out over the following week.”

6. In the mother’s affidavit affirmed 26 March 2014 at paragraph 17 she says:

   “In or around early 2011, I moved back into Mr Abbott’s house.  We both used a lot of drugs at this time, including Marijuana and ICE.  Again, when Mr Abbott was drug affected, he often became abusive, aggressive and violent.”

7. At paragraph 19 of the same affidavit she says:

   “From the time I discovered my pregnancy, I immediately stopped using ICE.  Mr Abbott continued to use ICE during my pregnancy…”

8. She details an incident of horrific violence that occurred on (omitted) 2011 when at paragraph 22 she says:

   “When I was about 6 or 7 months pregnant, on (omitted) 2011, Mr Abbott and I had a fight about money.  This argument escalated to the point where Mr Abbott lost control and started yelling at me for hours and hours.  Mr Abbott had been using ICE the night before and had not slept.  After yelling at me for hours, Mr Abbott grabbed me by the hair and pulled me off the couch and onto the ground.  He also strangled me to the point where I could not breathe, punched me and kicked me.  I finally fainted and Mr Abbott roused me by throwing water on me.  The abuse continued for about 6 hours throughout the night.  Mr Abbott ultimately punched me in the nose, causing me to bleed everywhere.  Mr Abbott called his parents in the morning and told them what happened and he left.  I called my boss as I was due to go to work and he told me that he would book an appointment with his GP.  I drove to my boss’ house and he took me to the doctor, who examined me for bruising.  My nose was very swollen  but I was unable to have an x-ray due to my pregnancy.  I did have an ultra sound done to make sure the baby was alright and she was.  The next day, the bruising had become very apparent.  I was black and blue.”

9. At paragraph 25 she says:

   “On (omitted) 2011, our daughter X was born.  For the first three months after X’s birth, Mr Abbott’s behaviour settled down.  He had stopped using drugs and he was working.  After those first 3 months, however, Mr Abbott started to pressure me to resume working.  We had arguments about this.  During these fights, Mr Abbott would bite my hand or fingers, try to break my fingers and generally lashed out at me.  On one occasion he picked up a wooden dining chair and lifted it above his head to break it but hit the light while fitting [sic] it, breaking it and the globes.  I felt trapped because of X.”

10. The parties separated again in early 2012 but the mother says at paragraph 29:

    “One night about 1am during the week, Mr Abbott rang many times to say that he was coming over.  I asked him not to as X and I were asleep but he insisted.  Mr Abbott arrived and appeared drug affected.  This was around (omitted) 2012.  Mr Abbott was extremely abusive verbally and then started strangling and hitting me.  I had bruising to the tops of my upper arms.  X was asleep.”

11. And at paragraphs 33 to 35, the mother goes on to say:

    “In the month of (omitted) 2012, there was a terrible incident on a school morning.  Mr Abbott lost control and started strangling me.  We had a fight the night before and Mr Abbott was demanding an apology from me.  The strangling continued for a while and only stopped because Mr Abbott had to take Y to school and go to work.  X was present throughout as was Y.

    On (omitted) 2012, there was an incident after we had been to a family function.  In the car on the way home, Mr Abbott was yelling wildly at me.  The two children were in the back.  We came home at about 11:30pm.  Y went to bed in his room.  X and I went to our bedroom.  Mr Abbott came in and started pulling my hair really hard, to the point where it came out.  He strangled me a few times.  I could not breathe.  Mr Abbott also kicked me very hard and yelled at me.  X was present during this assault.  She would not leave my side throughout the incident or afterwards.  Mr Abbott finally stopped and said sorry.

    There were many other incidents of violence however I cannot recall when they all happened.  I finally reported the major incidents to the police in January last year after a particularly bad incident on (omitted) 2013.  The day before, Mr Abbott and I had an argument at (omitted). Mr Abbott took Y and X from (omitted) to Melbourne, leaving me at (omitted) without my car.  Mr Abbott’s father drove me home the next day.  When I came home Mr Abbott attacked me, strangling me, kicking me and pulling my hair and belting me, while I was holding X in my arms.  I begged him to stop but he would not.  Mr Abbott then got some scissors and stabbed me in my right thigh.  Mr Abbott left and I called his father immediately.  He told me to call the police as did his sister so I did.  Mr Abbott did not return to live at this place and nor did I.  I went to live with my parents, with X.”

12. The father was subsequently charged with:

    a)Intentionally causing injury;

    b)Recklessly causing injury;

    c)Unlawful assault;

    d)Assault with a weapon;

    e)Contravention of a Family Violence Order;

    f)Criminal Damage; and

    g)Threats to kill.

13. The mother says at paragraph 37in her affidavit that after reporting the incident to the police they, “…applied for and obtained an Intervention Order against Mr Abbott, naming me and X as protected people…”

14. I have been told from the bar table by Counsel for the mother that the father is currently in gaol. 

15. The mother says at paragraph 44 of her affidavit, that in early August, 2013 she and Mr Abbott were attempting a reconciliation:

    “…I called Mr Abbott because I had started to forget about the bad times and because I missed our family unit.  We arranged to see one another with X.  He sounded well on the phone and told me that he had taken positive steps towards improving his life.  He told me that he had completed Narcotics Anonymous, that he was also seeing a psychologist and that he had returned to study full time and that he was feeling generally better.”

16. However on (omitted) 2014, there was “…another incident of domestic violence…” The mother says at paragraph 48:

    “…Mr Abbott strangled me, pulled my hair, threatened me with a knife, yelled at me and jammed his thumbs into my ears.  It was terrifying.  X was present for most of it.  I asked Mr Abbott to leave, saying I would otherwise call the police, Mr Abbott said that he was allowed to be at my place because of the varied Intervention Order.  The order actually expired the day that he assaulted me.  The abuse and violence continued into the following morning.  Mr Abbott left my place that morning.  I attended the police after he left and reported the matter…”

    Following this incident, on 7 February 2014 an interim Intervention order was made, with the police naming the mother and X as protected persons.

17. On 2 April 2014 a Notice of Child Abuse or Family Violence was filed on behalf of the mother.

18. On 12 April 2014, the father was served with the mother’s Initiating Application and affidavit filed 26 March 2014 and the mother’s Notice of Child Abuse or Family Violence filed 2 April 2014.

19. The matter came before me on 14 May 2014 in the duty list.  The mother was represented by Ms Devine of Counsel on this occasion and the father appeared in person. I made the following orders on this occasion:

    “THE COURT ORDERS THAT:

    1. All extant applications be adjourned to the Duty List of this Court on 27 August 2014 at 9.45 am for Directions (“the next adjourned date”).

    2. The Father make, file and serve a Response and an Affidavit in support on which he intends to rely upon by no later than twenty-one (21) days from the date hereof.

    3. The parties’ costs of this day be reserved.

    4. Copies of the correspondence pursuant to s.67z of the Family Law Act 1975 by Nicole Levy, Child Protection Practitioner from the Department of Human Services dated 8 May 2014 (“the Report”), if accompanied by a copy of this Order, may be given to:

    (a) the parties and their lawyers;

    (b) any Independent Children’s Lawyer in the proceedings;

    (c) a Children’s Court;

    (d) a State operated child protection authority; and

    (e) any other person or organisation to whom a specific order permits provision of the Report,

    AND that no person release the Report, or provide access to the Report, to any other person.

    UNTIL FURTHER ORDER THE COURT ORDERS BY CONSENT THAT:

    5. The child, X born (omitted) 2011 live with the Mother.

    AND THE COURT NOTES THAT:

    A. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.”

20. On 8 May 2014, the Department of Health & Human Services, formerly known as the Department of Human Services provided a response to the Notice of Child Abuse or Family Violence filed on behalf of the mother and a significant part of their response is as follows:

    “…The Department of Human Services acknowledge that the mother shows good insight into the father’s behaviour and how this has again impacted on X.  The mother presents as protective of X, by obtaining an Interim Intervention Order that lists herself and X as a protected person, has agreed that she will not allow contact between X, in light of her own concerns of the change she has seen in X’s father’s behaviour and her concern that this is indicative of possible declining mental health and/or substance use as well as in compliance with the current Intervention Order.  Further, the mother has agreed to no contact until DHS have completed their investigation of the father and his current presenting stage.  Whilst the mother has advised her intention is not to prohibit a relationship between X and her father, she is needing this to occur in safe space and has spoken of access occurring in a supervised environment.  Her rationale for this has demonstrated her insight into X’s stage of development, indicating she is too young to be able to express in words if there was a concern during unsupervised contact with her father.  Further, the mother has advised of her intention to seek Family Court proceedings to ensure the safety of X and the writing of this letter indicates the mother’s follow-through with her intentions...”

21. The matter returned before me on 27 August 2014.  The mother was represented by Mr Teo of Counsel and there was no appearance by or on behalf of the father.  On this occasion I made the following orders:

    “THE COURT ORDERS THAT:

    1. All extant applications be adjourned to this Court on 25 November 2014 at 9.30 am for Mention with the Respondent to attend in person or through a lawyer (“the next adjourned date”).

    UNTIL FURTHER ORDER THE COURT ORDERS THAT:

    2. The Applicant have sole parental responsibility for the child, X born (omitted) 2011 (“the child”).

    3. The child live with the Applicant.

    THE COURT FURTHER ORDERS THAT:

    4. The lawyers for the Applicant forthwith cause a sealed copy of this Order to be personally served on the Respondent.

    5. The lawyers for the Applicant forthwith file an Affidavit concerning compliance of Order 4 above.

    6. The Applicant’s costs of this day be reserved.

    AND THE COURT NOTES THAT:

    A. On the next adjourned date, in the event that the Respondent fails to appear, the Applicant has leave to apply to this Court for final parenting Orders.

    B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.”

22. On 21 November 2014 the mother’s lawyers, Frid & Associates contacted my Chambers via email transmission to advise:

    “…I act for the applicant mother in this matter, Ms McKenzie.

    Her application is listed for a mention on 25 November 2014 at 9:30am.

    The respondent father was sentenced to a 2 year term of imprisonment yesterday. The orders of 27 August 2014 required that I serve him personally with the orders made that day. I was unable to do so as we did not have an address for him, so I emailed the orders to him. He responded two days ago, confirming receipt of my email but saying he was unable to open the attached orders.

    My client instructs that Mr Abbott is aware of the mention next week but he does not have legal representation organised.

    I am concerned that he will not have adequate time to make arrangements for such representation and for a gaol order to bring him to court. I kindly ask, therefore, that the mention be adjourned administratively for a few of months, in which time I will be able to serve him in prison and he should be able to organise representation for himself.

    I look forward to hearing from you

    Kind regards

    Sharona Frid
    Frid & Associates Lawyers…”
    
    

23. After considering the email transmission from the mother’s lawyers, I made the following orders in chambers on 21 November 2014, which are as follows:

    “THE COURT ORDERS THAT:

    1. Order 1 of the Orders of Judge Curtain made on 27 August 2014 (“the August Orders”) be varied to read:

    “All extant applications be adjourned to this Court on 3 March 2015 at 9.30am for Mention with the Father to attend in person or through a lawyer (“the next adjourned date”).”

    2. Order 4 of the August Orders be varied to read:

    “The lawyers for the Mother forthwith cause a sealed copy of this Order to be personally served on the Father through the relevant prison authority.”

    3. Order 5 of the August Orders be varied to read:

    “The lawyers for the Mother forthwith file an Affidavit concerning compliance of Order 2 above.”

    AND THE COURT NOTES THAT:

    A. The Court is in receipt of an email transmission from Frid & Associates Lawyers, lawyers for the Mother, dated 21 November 2014 advising they have been unable to effect personal service on the Father because they did not know his address. The email transmission further advises that the Father has been sentenced to a term of imprisonment. The Mother’s lawyer requests that the matter be administratively adjourned to enable the Father to make arrangements for legal representation and for her to be able to serve the Father in prison.

    B. On the next adjourned date, in the event that the Father fails to appear or have a lawyer appear on his behalf, the Mother may have leave granted to apply to this Court for final parenting Orders.”

Conclusion

1. On 18 December 2014 an affidavit of service was filed on behalf of the mother that deposed to Mr B, Process Server serving my orders of 27 August 2014 and 21 November 2014 on the father at, “…(omitted) PRISON, (address omitted)…”

2. The matter came before me again on 3 March 2015. The mother was represented by Ms Southey of Counsel and there was no appearance by or on behalf of the father.  I made the orders detailed at the front of these reasons as being, in all the circumstances, in the best interests of X.

1. I have applied the principles enunciated in Goode & Goode (2006) FLC 93-286 and the relevant sections of Part VII of the Family Law Act 1975, including but not limited to ss.60B(1) and (2), s.60CA, s.60CC (and in particular s.60CC(2)(b) and s.60CC(2A)) and s.60CG.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Associate: 

Date:  30 March 2015