McLeay and Anderson

[2013] FCCA 1257

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCLEAY & ANDERSON [2013] FCCA 1257

Catchwords:
FAMILY LAW – Significant and substantial allegations of family violence – father in custody – hearing proceeding on an undefended basis as against the father – failure of Independent Children’s Lawyer to appear and discharge obligations and duties – discharge of Independent Children’s Lawyer – referral of Independent Children’s Lawyer to the Legal Aid Commission.

Legislation:

Family Law Act 1975, ss.4, 68B, 68C, 68L, 68LA, 60CA, 69ZN, 60B, 60CC, 61DA, 65DAA

Australian Passports Act 2005, s.11

Hasit Sali v SPC [1993] HCA 47
Rice & Asplund [1979] FLC 90-725
Re K (1994) FLC 92-461
AMS & AIF (1999) 199 CLR 160
Goode & Goode (2006) FLCA 93-286
Marvel [2010] FamCAFC 101

Applicant: MS MCLEAY

Respondent: MR ANDERSON

File Number: PAC 5222 of 2011

Judgment of: Judge Harman

Hearing date: 22 August 2013

Date of Last Submission: 22 August 2013

Delivered at: Parramatta

Delivered on: 22 August 2013

REPRESENTATION

Solicitors for the Applicant: Mahony Family Lawyers

ORDERS

1. The order appointing an Independent Children’s Lawyer is discharged.

2. Publish my reasons with respect to today’s hearing. 

3. Direct that a copy of these reasons are to be forwarded to the appropriate officer of the Legal Aid Commission seized with appointing and the funding of Independent Children’s Lawyers and with a request that:

   (a)Consideration be given for the formal removal of the former Independent Children’s Lawyer from the panel of practitioners allocated such work; and

   (b)Consideration as to what remuneration is to be paid, if any, to the Independent Children’s Lawyer for work performed, or alleged to be performed by them in these proceedings to date.

4. All existing parenting orders with respect to the children X born (omitted) 2006 and Y born (omitted) 2009 are discharged.

5. X and Y shall live with their mother Ms McLeay.

6. Ms McLeay shall have sole parental responsibility for the X and Y.

7. Pursuant to section 68B of the Family Law Act1975 Mr Anderson shall be and is hereby restrained from contacting or approaching Ms McLeay or either of the children, X and Y, by any means whatsoever including through any third party and further Mr Anderson is restrained from attending at or being within 100m of the place of residence of Ms McLeay and/or the children and/or any place of employment of Ms McLeay and/or any school attended by the X and/or Y.

8. Dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.

9. 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.

THE COURT NOTES THAT:

1. The above orders are orders for the personal protection of Ms McLeay and X and Y and as such the provisions of section 68C of the Family Law Act apply so that in the event that any police officer of the Australian Federal Police or any State or Territory police officer is satisfied that Mr Anderson is or has acted in breach of any order they shall be authorised to arrest Mr Anderson without further order or warrant and to then detain him until he can be brought before this Court and dealt with under the provisions of the Family Law Act.

2. Ms McLeay shall, consistent with the above orders, be entitled to apply for a Passport for the children X and/or Y.

3. The above orders including but not limited to the order for sole parental responsibility have the effect that Ms McLeay is for both the purposes of the Family Law Act and section 11 of the Australian Passports Act2005 is the sole person whose consent is required for the issue of a Passport or other travel document for X and/or Y and accordingly all officers of the Commonwealth seized with responsibility for the issuing and/or processing of applications and issue of Passports is requested to ensure that any application for the issue of same by Ms McLeay is processed on that basis.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5222 of 2011

MS MCLEAY

Applicant

And

MR ANDERSON

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for two children, X born (omitted) 2006 and Y born (omitted) 2009. 

2. The parties to the proceedings are the children’s parents, Ms McLeay and Mr Anderson.  Ms McLeay is the applicant.  Mr Anderson is the respondent.

The history of proceedings

1. The proceedings were commenced by the mother by an application filed by her on 7 November 2011 being slightly short of two years ago. 

2. The proceedings were initially commenced in the Family Court and remained in that court until orders were made by a Registrar transferring the proceedings to this Court.  That order would appear to have been made on or about 20 February 2012 and following a number of procedural appearances before that Court.

3. Since the proceedings first came before this Court there have been a number of adjournments necessitated by circumstances unrelated to the children’s welfare or at least not directly related thereto although largely relating to the father’s alleged criminal behaviour.

4. It would appear that the proceedings first came before the Family Court on 28 November 2011.  Prior to that date service would appear to have been effected in accordance with orders for substituted service which had been made by a Registrar in chambers. Both parties appeared. 

5. A number of interim orders were made on that occasion and by consent. Those orders provided that the parties would attend mediation, (curiously described as such rather than Family Dispute Resolution).  Orders were also made with respect to the children’s living arrangements which included an order for equal shared parental responsibility.  That order was made notwithstanding substantial allegations of family violence had been raised at that time and a Form 4 had been filed particularising those allegations.

6. Orders were otherwise made that the children and each of them would spend time with the mother for specified periods. Those orders arose in the context of the mother’s application, which had been commenced on short notice, which had sought to recover the children to her care after their removal by the father.

7. The proceedings were then adjourned to a date in January 2012. On that date it would appear that the matter was adjourned with no further order of substance and for reasons that are not apparent. 

8. The matter was again before the court on 10 February 2012. On that date the Registrar noted that, after lengthy negotiations, terms of settlement were drawn up and the parties “came very close to settlement” and concludes with a notation: “Father wanted a little time to consider the terms before signing”.

9. The matter was adjourned to 20 February for further mention and directions. On that date, there was no apparent agreement and the proceedings were transferred to this court. The parties were directed to attend a child dispute conference in the period between transfer and first listing in this court. 

10. On the first return date of the proceedings before this court, an order was made appointing an Independent Children's Lawyer. The proceedings were otherwise adjourned for interim hearing.

11. On 24 April 2012, the proceedings were listed for interim hearing, being the first occasion on which the Independent Children's Lawyer was to appear. On that date, the proceedings were adjourned at the request of both parties and Independent Children's Lawyer and the following noted

    “The proceedings are adjourned notwithstanding the expeditious advice by each of the parties to the Legal Aid Commission of the order appointing an Independent Children's Lawyer and notwithstanding same, the Independent Children's Lawyer was only recently provided with material, notwithstanding it had previously been forwarded to the Commission and accordingly the Independent Children’s Lawyer requires further time to undertake inquiries”.

12. The proceedings were next before the Court on 20 June 2012. On that date the Independent Children's Lawyer did not appear having requested that the solicitors for the applicant mention the matter on her behalf.

13. It was noted on that occasion, notwithstanding the actions by the Independent Children's Lawyer in requesting that the matter be mentioned by the applicant’s attorneys, that since the proceedings had last been before the Court, that there had been serious allegations of violence relating to the father and as deposed to in the mother’s filed material and as a consequence of which allegations, the father was, at that time, in custody, bail refused, facing a number of charges arising from those incidents.

14. The above are matters of great significance to which I will return very shortly.

15. On 20 June, 2012 and at the court’s own motion a number of orders were made pursuant to s.68B of the Family Law Act and including orders as follows:

    a)All existing parenting orders with respect to the children are suspended.

    b)X and Y shall live with their mother.

    c)Mr Anderson shall be and is hereby restrained from contacting or approaching Ms McLeay, the mother, or either of the children by any means, including through third parties and further Mr Anderson shall be and is hereby restrained from attending at or being within 100 metres of the place of residence of Ms McLeay and the children or the school attended by them.

16. It was noted that the above orders were subject to the provisions of s.68C and thus a police officer, satisfied on reasonable evidence, that a breach of such injunction had occurred, was authorised to arrest Mr Anderson and bring him before this court. Directions were also made requiring that the solicitors for the mother notify both the solicitors for the father, the father then having attorneys on record, although they have subsequently ceased to act, and the Independent Children's Lawyer of the orders and directions made that day.

17. The proceedings were next before the Court on 27 July 2012. On that date an appearance was entered on behalf of the father. The father’s attorney advised the Court of certain matters with respect to the father’s criminal proceedings and which matters were noted. 

18. The substance of that of which the Court was advised was that the father had appeared in the Local Court and those proceedings had been adjourned to 24 August 2012. Bail had not been granted and had not been sought and the father was to remain in custody between that date and the next appearance before the Local Court which was fixed for 24 August 2012.

19. On 27 July 2012 it was also noted that the Independent Children's Lawyer did not appear and had not advised either party or the Court of the fact that they did not propose to appear.

20. The proceedings then came before the Court on 8 October 2012. On that date, there was no appearance by or on behalf of the respondent whose attorneys had, in the intervening period, filed a notice of ceasing to act. 

21. The Court was advised that the father remained in custody, bail refused, pending the hearing of his proceedings and that a committal hearing was scheduled to occur between March and June of 2013 and on the basis that the father had entered pleas of not guilty with respect to the various offences with which he had been charged.

22. Accordingly, the proceedings were adjourned to today’s date and an order made that the Independent Children's Lawyer advise the father of the orders and directions made that day and the obligation upon him, if he wished to appear in the proceedings whether representing himself or otherwise, to make arrangements through the welfare office of the correctional centre in which he was held so that he could appear by telephone. 

23. The Court is advised that the Independent Children's Lawyer discharged that obligation on or about 24 October 2012. Whilst the Independent Children’s Lawyer is not here I accept that it is so.

24. There is no appearance by or on behalf of the father today, nor anything upon the court file to suggest that any request has been made by him to appear by telephone nor any other active step taken by him to participate in the proceedings.

Material considered

1. In dealing with the proceedings today, I have read and considered each of the following documents:

   a)The mother’s initiating application filed 7 November 2011;

   b)The mother’s affidavit sworn 4 November and filed 7 November 2011;

   c)A Form 4 notice of abuse filed 7 November 2011;

   d)An affidavit of the mother sworn or affirmed on 12 March 2012, filed 14 March 2012; and,

   e)A further affidavit of the mother sworn or affirmed 14 June 2012, filed 15 June 2012. 

2. In addition to the above a copy of an Apprehended Domestic Violence Order or amendment thereof has been tendered into evidence today and I have regard to that also.

3. A response has been filed by the father same having been filed by him on 9 December 2011. That response was accompanied by an affidavit.  I have not had regard to those documents other than to ascertain their existence. There is no agitation with respect to the relief sought in that response by the father who does not appear.

Undefended Hearing

1. I am satisfied that the matter can and should proceed today and to finality on an undefended basis. 

2. The father has had more than abundant opportunity to participate in these proceedings, the matter having been adjourned for a period of some 10 months to facilitate his participation. 

3. Whilst I appreciate that the father is in custody and the difficulties that this would create for the father in participating in the proceedings, they are not difficulties which are insurmountable. 

4. Each correctional centre within New South Wales has a welfare office for the purpose of providing assistance to inmates regarding matters external to the centre. 

5. The Legal Aid Commission conducts a prisoner’s legal service. There are a number of other pro bono services and other agencies that provide assistance to prisoners, together with official visitors and other officers external to the Department of Corrective Services.

6. That the father has taken no active step to participate. I am satisfied conclusion of the proceedings does not obviate against due process being afforded to him in these circumstances, having regard to:

   a)The length of time for which the proceedings have been on foot;

   b)The issues in dispute in the proceedings and the serious nature of allegations regarding the father’s behaviour towards the mother and others and to which these children have been exposed;

   c)The opportunity extended to the father, over a period of 10 months, to make arrangements to participate in the proceedings should he wish; and

   d)The obligation upon the court to manage its own affairs and its own resources by reference to a number of High Court authorities including, but not limited to, Hasit Sali v SPC Ltd [1993] HCA 47.

7. In those circumstances I am satisfied that nothing further would be achieved through adjournment of the proceedings other than further delay and further disadvantage to the mother and these two children.  Their lives have been horribly disrupted since, at least, the separation of these parties, if not earlier, and certainly the disruption of arrangements which arose with respect to the care of these children from the separation of the parties and during the brief period that the matter was before the Family Court and until the father’s incarceration was extreme.

8. I am satisfied that the matter can and should proceed on an undefended basis today and to finality. 

9. I am satisfied the father has been notified of today’s date. 

10. The orders that are sought by the mother are in accordance with her application or, to the extent that they are at variance therewith, are in accordance with interim orders made by this Court over 12 months ago and specifically on 20 June 2012. I am satisfied that the father has been served with those orders.

11. There could be no issue in the father’s mind as to the orders that Ms McLeay seeks with respect to these children and the impact those would have upon his relationship. It is, of course, a matter for Mr Anderson, upon his release from the custody of the Department of Corrective Services, if and when that occurs at some undefined point in the future and subject to the determination of his criminal proceedings, to make further application to this court either for variation of the orders that I propose to make today or for such other relief as he considers appropriate.

12. No order that I make will preclude Mr Anderson bringing such an application and one would think that any hurdle placed in his way by reference to Rice & Asplund [1979] FLC 90-725 and the line of authorities arising therefrom would be easily overcome by him. In any event, they are matters to be determined by possibly another judicial officer, but in any event at another time and based on facts and circumstances as presented at the time.

13. The only other potential impediment to the matter proceeding today is the failure of the Independent Children's Lawyer to appear.

The Independent Children's Lawyer and their discharge

1. The Independent Children's Lawyer was appointed by order made by this Court 23 March 2012. Since that date they have brought themselves to Court and appeared on two of the myriad occasions that the matter has been listed.

2. The subject matter of these proceedings, to which I will turn shortly, raises the most profound and significant issues with respect to the welfare of these children and their safety.

3. The allegations were raised in the evidence filed by the parties and certainly that of the mother which I have read and considered. The evidence contains allegations of:

   a)Significant and untreated mental health issues of the father;

   b)Significant and substantial violence perpetrated by the father towards the mother and others;

   c)The father’s engagement in use of drugs including but not limited to marijuana and cocaine; and

   d)The father’s involvement in drug dealing including dealing with drugs as described above and including possession of firearms connected therewith.

4. The father has, since at least mid 2012, been self-represented. The mother has been competently represented and thankfully so throughout these proceedings, however, both she and the father would have some real cause for concern as to how the interests of their children have been represented in these proceedings.

5. Section 68L of the Act provides the basis upon which the Court appoints an independent lawyer to represent the interests of proceedings. It is a broad power and whilst the court has regard to authorities such as Re K (1994) FLC 92-461 in determining whether it is appropriate to appoint an Independent Children’s Lawyer that authority, of itself, makes clear that the list of factors as set out therein to be considered are non-exhaustive. Accordingly the court’s discretion remains as set out in s.68L(2) being:

   If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:

   (a)    may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

   (b)    may make such other orders as it considers necessary to secure that independent representation of the child’s interests.

6. Section 68LA codifies the obligations imposed upon and created by the office of the Independent Children’s Lawyer. The office is one of great significance. An Independent Children’s Lawyer represents the interests of children being the very subject matter of the proceedings as those interests are the paramount consideration in the proceedings, (see s.60CA.). As the paramount consideration all other considerations are subservient, (see for instance, AMS & AIF (1999) 199 CLR 160).

1. By reference to those obligations and duties and the mere fact that the interests of a child, a person under a legal disability, are represented by the Independent Children’s Lawyer should make clear (but regrettably in this case would not appear to have made clear) the obligations and burden attached to the office.

2. It is an office that is proudly filled by many excellent and competent practitioners. That is to the benefit of the discharge of this Court’s jurisdiction and the interests of individual children whose interests are represented. That those obligations are not taken seriously in this or any other case is beyond regrettable.

3. The duties and obligations imposed upon the Independent Children’s Lawyer by s.68LA(2) require that the Independent Children’s Lawyer form an independent view based on the evidence available to them of what is in the child’s best interests. The Independent Children’s Lawyer must then act in relation to the proceedings in what the Independent Children’s Lawyer believes to be the best interests of the child. That would appear to be, in these proceedings, including on 27 July 2012, by simply failing to appear.

4. It would appear, with respect to today’s listing, that it is considered to be in the child’s best interests, as it was presumably considered on 20 June 2012, the first occasion that the matter was before the Court after the father’s arrest with respect to allegations of significant violence, to requesting that the attorney for the applicant mention the matter on their behalf and by providing what would appear, both on the prior occasion 20 June 2012 and today, to be far from satisfactory instruction.

5. In the circumstances of this case, where there are such significant allegations of violence and arising therefrom such significant factors impacting upon the children’s safety let alone best interests, to seek to have the matter mentioned by consent by the attorney for a party is entirely inexcusable and inexplicable. The basis upon which the father could reasonably form an apprehension of bias should be clear and manifest to any competent legal practitioner.

6. The father, bail refused and in custody, is expected, it would seem, to accept that the Independent Children’s Lawyer is both discharging their duties and doing so neutrally by “colluding”, (to use terminology which I have no doubt the father would perceive appropriate) of that with the applicant’s attorneys by having them mention the matter for them and indicating their support or and consent to the orders sought by the mother. That is all the more when a view is expressed, as s.68LA(2)(a) requires, as to what is in the child’s best interest and that view is contrary to or perceived to be contrary to the father’s interests.

7. For the mother to accept that her children’s interests are being competently and appropriately represented in the circumstances is also difficult comprehend. Perception is a very important aspect of reality and in the circumstances of this case, particularly in light of the factors raised by the evidence and which I have identified above, it is beyond comprehension that such a course would be taken. 

8. In the six occasions the matter has been before the Court since the Independent Children’s Lawyer was appointed, they have appeared twice. They have asked that the matter be mentioned by consent on their behalf three times and have failed to appear without explanation or notice to the parties let alone the Court on one occasion.

9. In those circumstances I am satisfied that the Independent Children’s Lawyer can and should be required to justify why:

   a)They should be remunerated for whatever it is that they have done. It has clearly not been attending Court to advocate on behalf of the children’s best interests;

   b)Remain upon the panel of practitioners appointed. 

10. In the event that the Independent Children’s Lawyer feels that they have been denied an opportunity to be heard with respect to that opinion I make clear in these reasons:

    a)The matter has been stood in the list for over an hour inconveniencing both the Court, disrupting its business and the other litigants here to prosecute their applications, as well as inconveniencing the mother and her attorney, whilst some attempt was made by the mother’s attorney to contact the Independent Children’s Lawyer and communicate the specific matters that are addressed by these reasons;

    b)The matter was listed at 9.30am. It is now 11am. The Independent Children’s Lawyer has not appeared. I am advised that she is before another Court in the State jurisdiction.

11. The terms and conditions of funding for an Independent Children’s Lawyer are issued by the Legal Aid Commission, an agency whose inadequacy of funding is the subject of regular media comment. The Commission’s funding would clearly appear inadequate to allow the performance of all work which the Commission would desire. That adds to the obligation of the Independent Children’s Lawyer to prosecute their office diligently and responsibly.

12. Both the Court and the Commission expects that the Independent Children’s Lawyer will appear as they are funded to do and funding grants allow for an agent to be instructed when the Independent Children’s Lawyer cannot personally appear.

13. Why it is impossible in this case on, this listing, for an agent to be instructed, which to any reasonable mind, let alone a legally trained mind, would have been the appropriate course, is not known. One can only speculate that it was not considered. 

14. The obligations specifically imposed upon the Independent Children’s Lawyer by s.68LA(5) commence with the obligation that I have addressed above, that is, to act impartially in dealings with the parties.

15. How the father, suggested to have mental health problems, incarcerated bail refused and facing criminal charges very much germane to these proceedings, is expected to perceive impartiality when the Independent Children’s Lawyer does not attend Court and requests that the matter be mentioned by the mother’s attorney who are prosecuting an application for a positive restraint that precludes the father making any contact with the children by any means whatsoever, simply defies any logic.

16. The Independent Children’s Lawyer is also required to discharge a number of further obligations including, by s.68LA(5)(d), to minimise trauma to the children associated with the proceedings. That is also touched upon by the principles set out s.69ZN whereby the Court has an obligation, also spoken to by the High Court authorities to which I have referred, to ensure that proceedings are conducted in a fashion that minimises the risk of harm to children, their exposure to abuse, neglect or family violence, the exposure of parties to such family violence and ultimately to conclude the proceedings with as little formality and technicality as to form as possible.

17. None of those duties imposed upon the court by the principles in s.69ZN are aided by the course of action taken by the Independent Children’s Lawyer in this case. Accordingly, such referrals will be made in due course.

18. I have touched upon these matters not to detract from the seriousness of the allegations raised in the proceedings, but in fact, to enhance them and I turn to the circumstances of the matter now.

Factual Background

1. These parties are both relatively young. The mother was born in 1989 and is 24 years of age. The father was born in 1986 and will soon turn 27.

2. The parties commenced to live together in a de facto relationship in or about 2006. What is apparent is that at the time that the relationship commenced the mother was, at best, 17 years of age.

3. The parties were married on (omitted) 2010 and separated on a final basis on 3 August 2011. 

4. During the parties’ relationship the two children were born.

5. The mother suggests, consistently throughout her material, that throughout the relationship she was the victim of violence at the hands of the father including most if not all of the manifestations of violence as contained in the s.4AB definition.

6. The mother gives clear and detailed evidence as to the violence to which she has been exposed. Concerningly, that also includes significant violence at and following separation.  Violence of such type and timing is, in accordance with research such as “the (omitted) Project”, particularly concerning, serious, problematic and potentially lethal.

7. It is suggested that on the date of final separation, 3 August 2011, that the mother indicated to the father, “I can’t do this any more.  I want a divorce.”  And the father responded, “In marriage there is no divorce.”  The father left the home but soon returned and refused to leave. 

8. The father returned on 27 August 2011 having entered the house through the garage of the home and having broken into the house in that fashion. The mother returned home to find the father who indicated to the mother:

   “Get the fuck out of my house. Why are you slutting around you slut.  I’m going to kill you.  I’m going to kill myself.  I’m going to kill all of us.”

9. It is then suggested that further incidents occurred and the police were involved. It is suggested that the father then left the home on that occasion, 27 August 2012, having poured petrol throughout the home. When he left the home it was with both of the children. As he left he said to the mother words to the effect, “I’m going to cool down.  It smells like petrol in the house. I promise I will give the boys back at 7.” 

10. The police arrived shortly after and applied for and obtained an urgent ex parte apprehended domestic violence order. The parties subsequently attended the Local Court at Mt Druitt on 5 September 2011 when an enforceable interim AVO was made for the mother’s protection and the father made aware of it.

11. A final AVO was made on 19 September 2011 which order expires 18 September 2013. That order was subsequently amended on 19 August, 2013 and as evidenced by Exhibit ‘M1’. The amended order adds far more extensive conditions and was sought as the father continued, notwithstanding prohibition of same, to contact the mother from gaol.

12. The terms of the present enforceable Domestic Violence Order, in addition to the standard orders, provides:

    (1)The defendant must not enter the premises at which the protected person may from time to time reside or work.

    (2)The defendant must not approach or contact the protected person by any means whatsoever except through his legal representative or as authorised by a parenting order under the Family Law Act.

13. Clearly at the time that this order was made there was no parenting order which provided any basis upon which the father could assert that he had a right or entitlement to contact the mother or the children, s.68B orders having been made on 20 June 2012 and in terms which precluded such contact.

    (3)The defendant must not approach the school or other premises at which the protected persons being the children included as protected persons attend.

    (4)The defendant must not approach the protected person within 12 hours of consuming illicit drugs or liquor, and

    (5)The defendant must not destroy deliberately the period of property of the protected persons.

14. The father also came to the attention of the police a short time after separation and on 4 September. On that occasion, the father is suggested to have beaten and berated the mother, and said to her words to the effect, “Are you cheating on me?  I know the truth, and if you lie I’m going to kill us all”, referring not only to the parents, but the children.  It is then suggested that the interrogation with respect to that topic continued for some little time. 

15. The parties were then in a motor vehicle and the father began to drive towards a cliff edge, saying “I’m going to kill myself”. The mother pleaded with him and suggested that he not do so.  It is then suggested that the father left the mother at the side of the road saying, “I’m leaving you here, because you’re a slut. Find your own way home.”  The mother again engaged in conversation with the father to ameliorate his behaviours.

16. He then drove the mother to (omitted) and, upon arriving, said to her:

    “I know you have a new boyfriend. You have to choose to be with me or with your boyfriend. If you choose your boyfriend, I will kill all of us. If you choose me, Y and X, I will just kill your boyfriend.”

17. Again, events of that nature and conversations on those topics continued for some little while. Eventually the father would appear to have grown tired of his own boorish behaviour and the mother was allowed to leave.

18. A further incident occurred on 13 October 2011. Again, there were similar threats. The behaviours of the father at that time are highly concerning. 

19. The children were then taken from the mother by the father and were not returned. The mother applied for Legal Aid and ultimately commenced the proceedings referred to above.

20. A number of concerns were expressed by the mother in her initiating application and Affidavit which material has been provided to the Independent Children’s Lawyer. Notwithstanding those allegations and their seriousness, the above cavalier attitude towards the representation of the children’s interests has been demonstrated.

21. The mother has returned to those matters in further affidavits that she has filed. In her affidavit of 14 March 2012, the mother refers to difficulties that arose in relation to the father’s attitude towards the school the children would attend. That was so, notwithstanding that specific orders were made by this Court as to the school the elder of the children would attend. 

22. The father is suggested, on 29 November 2011, to have engaged in behaviours not dissimilar to above. 

23. It is then suggested that the father had attended at the eldest child’s school on 1 June 2012, in breach of the Apprehended Domestic Violence Order then in force, and sought to remove the eldest child.  He did not do so.

24. On 2 June 2012, the police attended at the mother’s residence and spoke to her.  She became aware, as a consequence of that conversation, that the father was wanted by the police in relation to an investigation which has led to the charges which the father now faces. The mother sought assistance from the police and from the Department of Community Services on that day as the father had removed the children from their school and/or her care and she was unable to obtain any assistance from any other person, including the father’s parents.

25. The incident to which the police were referring (that which caused them a desire to speak with the father) was reported in the media and copies of that media material has been filed by the mother being annexed to her affidavit sworn and affirmed 14 June 2012.  The media reports would suggest that the father, in not dissimilar fashion to his behaviours towards the mother previously, and as referred to above, had been involved in a home invasion in Sydney’s west and had doused the 51-year-old occupant of those premises with petrol, fired shots and had threatened to set fire to the man thus doused. 

26. Mr Anderson was subsequently arrested at a hotel in (omitted) a few days later. They are the offences with which the father would now appear to have been charged. 

Proposals of the parties

1. The father, whilst he has filed a response, is not here to agitate any relief and thus, I do not propose to have any regard to the orders that he seeks, other than to make clear that his response seeks orders for equal shared parental responsibility and a week-about equal time arrangement. I can infer from that, if nothing else, that the father accepts that the mother is a perfectly capable and competent carer for the children, as I cannot understand how it could be proposed that a week-about time arrangement would occur otherwise.

2. The mother seeks orders for sole parental responsibility and a continuation of the s.68B orders made by me on 20 June 2012. I make clear that those orders were made on that date of the Court’s own motion and in the absence of the Independent Children’s Lawyer, who had, on that occasion as today, requested that the applicant’s solicitors mention the matter on their behalf, but did not provide any indication of any position they agitated or supported.

3. The orders could have been made on the application of the Independent Children’s Lawyer on that date. It is clear that the Independent Children’s Lawyer was aware of the matters that the mother refers to in her affidavit of 14 June. It is difficult to understand how one discharging an obligation to represent the best interests of the two children could have had any other position. No position was communicated by the Independent Children’s Lawyer, save to seek an adjournment, for what purpose is unclear, and remains unclear.

Legislative Pathway

1. I turn now to the legislative pathway which applies to the determination of the substantive dispute.

2. I am required to commence with the objects and principles in s.60B(1) and (2) which I incorporate herein as follows:

   Objects of Part and principles underlying it

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The objects and principles require that the Court ensure that the children’s best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives. However, consistent with ss.60CC(2) and (2)(a), that must be offset against and balanced with ensuring the protection of children from physical or psychological harm. In any event, the objects and principles do not form part of the substantive law but inform the application and interpretation of the Act.

4. As I have already indicated, s.60CA reminds the Court that, in all that is done, the child’s best interests are the paramount consideration. I have had regard to that paramount consideration, not only with respect to the substantive merits of the matter but in determining that the proceedings should not be further adjourned and should be concluded today on an undefended basis.

5. I must then turn to s.61DA, which provides the presumption in favour of equal shared parental responsibility. I must be satisfied that the presumption applies.

6. Subsection (2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or has engaged in family violence.

7. I have referred to the mother’s material filed in the proceedings, which I have read and considered. The material is not challenged and thus I accept its truth and veracity and I make findings of fact in accordance with each paragraph thereof. 

1. On that basis, there are clearly reasonable grounds to believe that the father has engaged in family violence, most insidious, complex and long-lasting family violence.

2. Lest I am wrong in that regard, I am satisfied by reference to subsection (4) that it would simply not be in the children’s best interests for parental responsibility to be shared equally between the parents, and for reasons that I will explore as part of the consideration of s.60CC.

3. That being so I am not obliged to consider equal or substantial and significant time before considering any other time arrangement.  In any event, there is no agitation for any order for time. The mother does not seek one, and the father does not appear. Thus, I am satisfied, and as the Full Court has made clear is appropriate (see Goode & Goode (2006) FLCA 93-286 and Marvel [2010] FamCAFC 101), I propose to consider all time arrangements at large and by reference to s.60CC, and incorporating therein, via s.60CC(3)(m), the provisions of s.65DAA(5).

4. Section 60CC(2) provides the primary considerations, being:

   a)The benefit to the child of having a meaningful relationship with both parents; and

   b)The need to protect the child from physical or psychological harm.

5. Subsection (2)(a) prioritises the latter over the former.

6. In this case, I am satisfied that the children have an abundantly meaningful relationship with their mother. She meets their needs, she cares for them and she has acted protectively in ensuring that they are not exposed to their father. She effected separation, at least in part, and to ensure the children’s safety.

7. I have no such satisfaction as to the nature of the children’s relationship with their father. It is a relationship that has been typified by the perpetration of violence by him in their presence and behaviours which are abusive. In those circumstances, whilst the children would have a familiarity with their father, I cannot be satisfied that it would be a meaningful relationship or could be appropriately described as such

8. The need to protect the children from physical and psychological harm in these proceedings is manifest. The father has engaged in the most insidious perpetration of family violence against this mother. It is extraordinary that such violence could be considered as other than a fundamental concern for these children’s future welfare. 

9. By reference to s.60CC(2)(a) I am satisfied that I must give not only greater weight to the children’s protection from harm than any consideration of the children’s meaningful relationship with the father, which relationship I am not satisfied presently exists or could reasonably be expected to exist in the future, but to give it weight that approaches dispositive.

10. In turning to the additional considerations:

Children’s views

1. There is no clear evidence as to the children’s views, however, I am satisfied that the orders that the mother seeks are in conflict with such views as the children would hold. 

2. These children have, throughout their short lives, been exposed to significant violence, both physical and verbal, by their father.  One would imagine that the children would have some reaction of fear to their father at this point, and would have little familiarity with him, having not seen him now for well in excess of 12 months, and prior to that, having seen him in the most tense and inappropriate circumstances. 

Nature of the child’s relationship with each parent and other persons

1. I have no doubt that these children enjoy an excellent, deep and meaningful relationship with their mother. That is a relationship, regrettably, made all the deeper as a consequence of the shared experience of terror that they have all enjoyed at the hands of this father. 

2. I am not satisfied the children would presently enjoy a relationship of any meaning, importance, or a relationship that would be appropriate or safe to continue with their father.

The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child

1. I cannot be critical of the father for failing to communicate or spend time with the children. He has not been at liberty to do so, nor permitted to do so, as a consequence both of the Domestic Violence Order made by the State Court and the s.68B orders made by me on 20 June 2012.

2. The father can, however, be criticised for failing to participate in decision-making. He has had a more than abundant opportunity to participate in these proceedings and has failed to do so. 

The extent to which the parents have fulfilled or failed to fulfil their obligation to meet the children’s needs and maintain them

1. The mother meets these children’s needs and maintains them solely.  The father has failed.

Likely effect of change, including separation from either parent

1. I am satisfied that it would be disastrous for these children to be separated from their mother even temporarily. 

2. There is no benefit to these children from their separation from their mother for the purpose of facilitating their time with their father in the circumstances described above. In any event, there is no agitation for any such order. 

Practical difficulty and expense

1. I will deal with this as part of s.65DAA(5).

Capacity of the parents to meet the children’s emotional and intellectual needs

1. It should be manifestly clear from the above that I have no confidence that the father has the insight necessary, nor the capacity, to meet these children’s emotional or intellectual needs. He has demonstrated his complete ignorance of those needs through his behaviour since their birth, including but not limited to his behaviour towards their mother and towards their mother in their presence and hearing.

2. I have no concerns with respect to the mother’s capacity to meet these children’s needs, and she has acted protectively and appropriately at all times, and parents them, and has done so in the most trying and onerous of circumstances.

Maturity, sex, lifestyle and background

1. These children are very young and require protection from harm. They need consistency in their care and that is provided by their mother. No order will be made which will interfere with that. That includes my satisfaction, by reference to s.61DA(4) and s.65DAC that it is inappropriate and contrary to these children’s best interests for an order for equal shared parental responsibility to be contemplated.

2. The onerous burden that would be imposed upon this mother of expecting her to consult with the father – a person who is restrained by two Courts under separate State and Federal legislation, respectively, from communicating with her – is inappropriate.

Whether the child is an Aboriginal or Torres Strait Islander child

1. There is no evidence to suggest that is so. 

2. The mother is from a (omitted) background and the children will continue to enjoy that culture whilst in the mother’s care by reference to this factor and s.60CC(6) and subsection (g) above.

The attitude to the child and responsibilities of parenthood demonstrated by each of the parents

1. I have no concerns regarding the mother’s attitude, as expressed and demonstrated.

2. As regards to the father’s attitude I am significantly concerned that he has no capacity to demonstrate or hold an appropriate attitude.  For him to believe that the actions he has engaged in towards the mother, and including in the children’s presence, are appropriate, including threatening to kill them if he does not achieve that which he desires as regards a relationship, is sufficient, in my mind, to be entirely satisfied (and I thus find) that the father is incapable of recognising, holding, forming or demonstrating an appropriate attitude. 

Family violence

1. It is a manifest consideration, as already made clear.

Family violence orders that apply

1. They are recited above and I do not propose to make any order which interferes with their effective operation or which is, in any way, inconsistent with the State order. I propose to make orders that will act in aid.

Whether it is preferable to make an order that will least likely lead to the institution of future proceedings

1. I am satisfied that the best I can do is to conclude these proceedings today. They have been on foot for nearly two years.

2. By reference to the Federal Circuit Court Rules, the father has taken no active step to participate in these proceedings for in excess of six months and thus I am entitled to dismiss his application for want of prosecution. I will not do so but propose to conclude the proceedings by way of undefended orders in his absence, because I am satisfied, as made clear above that the father has had more than abundant due process.

Any other facts and circumstances (incorporating section 65DAA(5))

1. The parents do not live any significant distance apart. However, s.65DAA(5) is not confined to logistical and geographical consideration. It is purely the first of the five matters that the Court must have regard to.

2. Section 65DAA sets out the matters that one would expect to see if the parents were to have any realistic prospect of operating in an environment of cooperation and collegiate parenting. I am not satisfied that they can nor should this mother be expected to.

3. The parents have no current or future capacity to implement an arrangement for these children spending time with their father.  Indeed, no order is sought.

4. The parents have no capacity to communicate. There are State orders and orders of this Court both of which would carry potential penalties of imprisonment or significant fine for breach, which preclude communication. They are entirely appropriate orders and will be continued, as regards orders under the Family Law Act, by the orders to be made by me today and completing these proceedings.

5. In considering the impact of arrangements on the child I am satisfied there would be a positively detrimental impact on these children of any orders other than those sought by the mother. The orders that she seeks are in the children’s best interest, will provide safety for her and them. 

6. The mother’s capacity to parent these children, I am satisfied, would be significantly undermined and negatively so by any order which required her to communicate in any fashion with the father or which allowed or permitted the father to communicate with her and through her, the children. 

7. In those circumstances I am satisfied that orders as sought are entirely appropriate.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  3 September 2013