MERRICK & JAMES

FAMILY COURT OF AUSTRALIA

MERRICK & JAMES

[2014] FamCA 387

FAMILY LAW – CHILDREN – where there was no appearance by the father – mother’s application, supported by Independent Children’s Lawyer, for sole parental responsibility and for the children to spend no time with the father – where the father has been accorded procedural fairness and it was appropriate to proceed on an undefended basis – children have spent no time with the father since separation – family violence – orders made in terms sought by the mother.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DA.
APPLICANT:	Mr Merrick

RESPONDENT:

Ms James

INDEPENDENT CHILDREN’S LAWYER:

Mr Lynch

FILE NUMBER:

MLC

9251

2012

DATE DELIVERED:

8 May 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

7 March, 8 May 2014

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Jenkins on 7 March 2014
In person on 8 May 2014

SOLICITOR FOR THE RESPONDENT:

Perry Weston on 7 March 2014

In person on 8 May 2014

SOLICITOR APPEARING AS COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr P Lynch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Lynch

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

The mother have sole parental responsibility for the children N born … 2005 and B born … 2007 (“the children”).
The children live with the mother.
The father spend no time and have no telephone or internet contact with the children, save for that the father be permitted to send the children or either of them a letter or card on four occasions each year provided that such correspondence be sent to an address nominated by the mother and not being the mother’s or the children’s residential address and that the letters or cards be opened by the mother and only provided to the children or either of them if the mother considers the contents of such correspondences appropriate.
The father, his servants and/or his agents be restrained by injunction from approaching or remaining within 500 metres of the children or either of them, attending or remaining within 500 metres of the children’s schools, attending any of the children’s school functions or getting another person to do anything he must not do under these orders.
The father keep the mother informed of his residential address and contact numbers via an address nominated by the mother.
The mother nominate a third party with whom the father can make contact in the case of an emergency and provide the details of same within seven days of the date of these orders.
The mother and her servants and/or her agents be restrained by injunction from bringing the children into contact with the father.
The mother be permitted to obtain and renew Australian Passports for the children or either of them with the Australian Passports Office without requiring the written consent of the father for such passports to be issued or renewed and that any Australian passports so issued with respect to the children or either of them be retained by the mother.
The mother make the children available to Mr A, Family Consultant, for the purpose of having the orders explained to them and that she make an appointment for the children to attend upon Mr A as soon as practicable.
The fee for Mr A, Family Consultant, pursuant to order 9, be paid by the Court and calculated according to the fee schedule for Regulation 7 Consultants.
The Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

Having been satisfied that the applicant father was accorded procedural fairness, the hearing proceeded in his absence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrick & James 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 MELBOURNE

FILE NUMBER: MLC 9251 of 2012

Mr Merrick

Applicant

And

Ms James

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the mother’s application for final parenting orders to be made on an undefended basis in relation to the two children of the relationship.[1]
[1] Under Part VII of the Family Law Act 1975 (Cth).
N is aged nine and has been diagnosed with high functioning autism spectrum disorder, a mild intellectual disability and severe anxiety. B is aged six and has been diagnosed with post-traumatic stress disorder. Both children have speech impairment and behavioural issues.
The mother sought, amongst other orders, sole parental responsibility for the children and that they live with her and spend no time with the father.
The mother, represented by counsel, appeared before me on the first hearing day in response to an application made by the father on 24 October 2012 which originated in the then Federal Magistrates Court.[2] The father did not attend at either of the hearing dates. His solicitors had filed a Notice of Ceasing to Act on 19 February 2014, which was the day after the mother filed her Further Amended Response to his application.
[2] Now known as the Federal Circuit Court.
The father had sought orders for equal shared parental responsibility for the two children of the relationship and to “spend reasonable time and have reasonable communication” with the children. However, the father did not comply with orders made on 6 December 2013 requiring him to file an Amended Initiating Application and a summary of issues.

Background

The parties began a relationship in 1999 and lived together from mid-2005. They finally separated in January 2010 when N was almost five and B was aged three.
The mother, at 32 years old, is wheelchair bound and suffers from significant physical and psychological disabilities including post-traumatic stress disorder. She is receiving financial support from the Department of Human Services and the two children are eligible for services under the Disability Act 2006 (Vic). The father is 32 and his employment and whereabouts are unknown to the mother.
The mother gave evidence, which I accept, that she was subjected to severe and ongoing physical, verbal and emotional abuse by the father and violent and controlling behaviour during the relationship. In her affidavit material the mother deposed to numerous violent incidents committed by the father against her and the children, including in the presence of the children. The violence against the mother by the father continued after final separation.
The father has not spent any time with the children for approximately two years. He has not seen the children since Christmas Eve 2011 when he assaulted the mother in their presence.

The hearings

Counsel for the mother and counsel for the Independent Children’s Lawyer urged that the mother’s application proceed in the absence of the father because he failed to attend the hearings and had been provided with sufficient notice of the proceedings.
I was satisfied that the applicant father had been accorded procedural fairness, having been notified of the mother’s Further Amended Response and the likelihood of the hearing proceeding on an undefended basis. In concluding that the father had been accorded procedural fairness, I took into account the following matters:
·the father had received a copy of the Family Report on 11 April 2013 through his solicitors and he subsequently attended the Federal Circuit Court on 26 April 2013 where he was represented by counsel;
·an order made on 6 December 2013 in the Family Court of Australia, with a notation that the hearing would proceed on an undefended basis in the event of the father’s non-compliance, was posted to the then solicitor for the applicant;
·Exhibit A – a letter from the solicitors for the mother to the solicitors for the father dated 19 February 2014 notified the father that an application would be made by the mother to proceed on an undefended basis at the next hearing;
·Exhibit B – a letter to the father enclosing the mother’s case summary for the mother, which was mailed to the father at his address for service on 28 February 2014;
·the mother, her solicitors and the Independent Children’s Lawyer had received no communication from the father since his Notice of Ceasing to Act was filed by his solicitors with an address for service;
·the solicitor for the Independent Children’s lawyer had attempted to telephone the father by way of his mobile phone without success;
·a copy of the Family Report and update were mailed by the Independent Children’s Lawyer to the address for service for the father; and
·the father was called three times outside court before both hearings proceeded.
The hearing on 7 March 2014 could not be concluded because the Family Report of Mr A, the Family Consultant on whom both parties in attendance relied, was not on affidavit. Unsuccessful attempts were made to contact the Family Consultant so that his report could be adopted into evidence via telephone.
Counsel for the mother informed the Court that the mother was now ineligible for legal representation funded by legal aid but volunteered to represent the mother and make submissions.
Counsel for the Independent Children’s Lawyer proposed filing the report of the Family Consultant in affidavit form at a later date. He proposed obtaining an update from the Family Consultant about the mechanics of his proposal that any orders made be explained to the children.
After hearing evidence from the mother and submissions from both counsel on 7 March 2014, the hearing was adjourned part heard to 8 May 2014 so that the evidence of the Family Consultant could be filed. The Independent Children’s Lawyer also undertook to ensure that this material was served on the father at his address for service.

The mother’s application

On the final hearing date, the mother ultimately sought orders that:
·the mother have sole parental responsibility for the children;
·the children live with the mother and spend no time with the father;
·the children have no phone or Internet contact with the father;
·the father be permitted to send the children a letter/card on four occasions each year to an address nominated by the mother and only be provided to the children if the mother considers it appropriate;
·the father be restrained by injunction from coming within 500 metres of the children or their schools and from attending school functions or getting another person to do anything he must not do under the orders;
·the father keep the mother informed of his residential address and telephone number via an address nominated by the mother;
·the mother nominate a third party with whom the father can make contact in the case of an emergency and provide the details within seven days;
·the mother and her servants/agents be restrained by injunction from bringing the children into contact with the father;
·the mother be permitted to obtain and renew passports for the children without requiring the father’s consent and the mother retain the passports; and
·the mother make the children available to the Family Consultant, Mr A, for the purpose of having the orders explained to them.
The mother gave evidence in Court at the first hearing and her counsel relied upon that evidence and the material listed in the annexure to this judgment. The orders sought by the mother were consistent with the recommendations made in the Family Report. The mother expressed some reservation about the need for the Family Consultant to explain the orders to the children but ultimately sought an order including this proposal. The mother volunteered to drive the children to see the Family Consultant for him to explain the orders if required.
The Independent Children’s Lawyer supported the mother’s application which was also consistent with the recommendations of the Family Consultant. He also submitted that because he had not met the children, it was in the best interests of the children that the Family Consultant explain the orders to them in accordance with the recommendations. Counsel for the Independent Children’s Lawyer undertook to provide a copy of the court orders to the Family Consultant to expedite the process for the explanation of the orders. He also submitted that the Independent Children’s Lawyer be discharged.

Evidence

Evidence of the mother

The evidence given by the mother in court and by affidavit described a long history of domestic violence by the father against the mother. Her evidence was unchallenged and I accept the evidence of the mother on the balance of probabilities.
The mother detailed numerous incidents of violence against her by the father. The first physical assault occurred in 2006 and further incidents occurred regularly until Christmas Eve 2011. The following are the incidents described by the mother in evidence:
·In 2006, the father “became very angry and proceeded to place his hands around my throat in what I believe was an attempt to strangle me. He punched me in the face repeatedly, causing my nose to bleed. I sustained a black eye and severe bruising to my cheeks as a result of this incident” and the child N “became highly distressed”.[3]
[3] Affidavit of the mother filed 9 November 2012 at [8].
·In 2007, when the mother was 12 weeks pregnant with B, the father became enraged and screamed at her ‘nothing you do is good enough’ and proceeded to punch her in the stomach in what she believed was an attempt to cause her to miscarry and he then damaged and destroyed the property in her home.[4] On this occasion, the mother called the Police and made a complaint, however she later withdrew this statement as she was afraid of the repercussions.
[4] Ibid at [9].
·The mother deposed that the father tried to strangle her on another occasion while she was pregnant with B.[5]
·In July 2007, when the mother was pregnant with B, the father threw her over the front railing of their Suburb C property. She sustained a black eye and a split lip.[6] The mother did not seek medical treatment or report the incident to the Police for fear of what the father might do to her if she reported him. This incident caused the mother to move into her parents’ house with the children, however she returned to live with the father in March 2008.
·On another occasion during the relationship the father physically hit the mother while she was in the bathroom bathing the children and he smashed and broke her mobile phone in front of the children, causing them to cry and become extremely distressed.[7] The mother deposed that it was this incident which caused her to move with the children to a rental property in Suburb D.
·In November 2001, the father attended that rental property in Suburb D and verbally abused the mother telling N that his mother was “a worthless tip-rat.” The father then smashed most of the crockery in the house and held the mother down inside the house, covering her mouth and punching her repeatedly in the head. This incident occurred whilst N was in the house and caused him significant distress as he began to run around screaming for help and then hid in the mother’s bedroom.[8]
·In November 2011, the father moved his belongings into the garage of the mother’s second rental property at Suburb D and when the mother approached him requesting that he leave the premises he refused. He became threatening and physically violent towards the mother causing her to fear for her own safety and that of the children.[9]
·On 2 December 2011, when the mother was home alone, the father entered the house by the back door, uninvited and started yelling and verbally abusing her. He punched her in the head a few times, and as she attempted to protect her head, he punched her hand breaking the mother’s fourth finger on her right hand. She sustained bruising and swelling to her face, head and nose.[10] The mother did not report the incident to Police again for fear of what the father would do if the incident was reported.
·On 8 December 2011, the mother returned home to find that the house had been broken into. She found significant property damage. The window in the toilet had been smashed in and someone had entered the house, ripped all her books into pieces, smashed a hammer or other tool through the buffet unit, smashed most of her crockery and the telephone handsets for the landline, snapped the television remote controls and a bonfire had been lit in her backyard, where the majority of her belongings, including her clothing and personal effects and medication had been burnt and destroyed, as well as the children’s medications. The children were unwell at the time and her medication was required for depression and back pain.[11] The mother noted that whoever had broken in had also had a shower in the bathroom as there was a pool of blood on the bathroom floor. The mother reported the break-in and property damage to the Suburb D Police Station and a few days later received a text message from the father stating “Sorry, you weren’t there so I had to get in.”[12]
·In mid-December 2011, the father confronted the mother when she was leaving home to attend B’s birthday at a Play Centre in Suburb M. There was a distressing altercation with the father. After she left the home with the two children in her car, the mother noticed the “father’s car drive straight towards us very fast and try to have our vehicles collide head on.”[13] The mother pulled over to avoid a collision and the father jumped out of his car running towards them, leaving his vehicle parked on the road. He banged on the car windows and screamed abuse at the mother telling the children that they were “never going to see daddy again because daddy was going to have to kill himself” and “goodbye” and it was “all mummy’s fault.” The children were highly distressed and crying in the car, crouching with their heads down.[14] The mother did not report this incident to the Police.
·On 24 December 2011, when the children and mother arrived home at 11.30pm after spending the evening with her family at her brother’s home, the mother noticed the father “waiting outside the house and waving a crowbar and a wooden mallet”. He appeared to be intoxicated and looked very angry.[15] The father ran off down the street briefly and the mother took the children inside the house and locked the doors. A short time later, the father returned and forced his way into the house “smashing the wooden backdoor.” The mother ran into the laundry. The father followed her and punched her continuously in the head and back.[16] The mother then walked into the kitchen shutting the door and leaned against it to prevent the father coming in. The father then smashed the wooden mallet through the kitchen door, striking the mother in the back of the head and on her back a number of times, causing her to fall to the ground.[17] The father then broke things in the house, smashed the windows in the lounge room, broke the children’s Christmas presents and smashed the windows of the maternal grandfather’s car, which she was driving at the time, and the windscreen of her sister’s car which was also parked there. The mother called the Police on this occasion and obtained an Interim Intervention Order against the father in favour of herself and the children.[18] The mother deposed that she suffered significant injuries as a result of this assault and sought medical treatment the following day. The mother then moved into crisis accommodation.[19]

[5] Ibid at [10].

[6] Ibid at [11].

[7] Ibid at [12].

[8] Ibid at [13].

[9] Ibid at [14].

[10] Ibid at [15].

[11] Ibid at [16].

[12] Ibid.

[13] Ibid at [17].

[14] Ibid.

[15] Ibid at [19].

[16] Ibid.

[17] Ibid.

[18] Ibid at [23].

[19] Ibid at [25].

The mother described the injuries she sustained as a result of the assault on 24 December 2011 as follows:
a)wooden splinters in her neck, back and shoulders which remained for five months after the assault;
b)an exacerbation of her existing degenerated and bulging disks in her back;
c)the mother has had to remain in a wheelchair, which has affected her daily life significantly;
d)the development of a pituitary insufficiency, which has led to adrenal insufficiency; the mother was told by her doctor that the pituitary insufficiency is caused by severe head trauma or a tumour on the pituitary gland.[20]
[20] Ibid at [22].
It is the mother’s evidence that the father was charged by the police in relation to the assault on 24 December 2011. [21] The mother’s counsel submitted at the hearing that the father was sentenced to an eight month community correction order.
[21] Ibid at [24].
The mother deposed in her affidavit sworn 23 April 2013 that the child N has been diagnosed with high functioning autism, a mild intellectual disability and severe anxiety and behavioural issues and that B has been diagnosed with post-traumatic stress disorder or acute stress disorder type 1. The mother deposes that both children have significant speech impairments.[22]
[22] The mother’s affidavit sworn 23 April 2013 at [4].
The mother’s counsel sought orders in accordance with the recommendations of the Family Report and submitted that the children would be re-traumatised if they were to spend any time with the father. She submitted that it is in the best interests of the children to live with the mother and have no contact with the father.

Evidence of the maternal grandmother

In her affidavit sworn 5 February 2013, the maternal grandmother deposed that for the entire duration of the relationship the father never took an active role in parenting the children or showed any desire or interest in spending any period of time with them. She was of the view that the father was incapable and unwilling to care for the children and meet their needs.
During times when she babysat the children on Saturdays when the mother worked, she observed that the father would spend a great deal of time in his garage drinking alcohol and would consume a carton of beer.
The maternal grandmother deposed that she was not initially aware of the full extent of the violence against her daughter. She deposed that the mother and children lived with her and her husband in December 2009 and January 2010 but a short time after the mother left in January 2010 she returned almost immediately disclosing that there had been an incident of family violence against her where the father became verbally abusive and proceeded to smash and break crockery in the house and destroy her mobile phone in the presence of the children.

Report by Dr E dated 6 February 2013

Dr E compiled a report about the likely effect of any contact between B and his father.[23] Dr E worked with B and his mother and the maternal grandparents from August 2012 until February 2013 in his professional capacity in the field of infant mental health. Dr E is qualified in infant, child and adolescent psychiatry and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists.
[23] Affidavit of Dr E sworn and filed on 6 February 2013.
Dr E diagnosed B with post-traumatic stress disorder and stated that the core features of his clinical presentation were exposure to a number of traumatic events followed by a prolonged post-traumatic clinical response. The alleged traumatic events were a number of instances of violence and intimidation by the father against the mother in addition to an attempt by the father to run the mother and the children off the road in their car.
Dr E stated that there was evidence in B of regression of a number of developmental skills, including his speech, which had become poorly articulated and difficult to understand. He referred to a loss of ability to manage tasks independently without support including requiring help with his meals and toileting.
Dr E stated that over the course of treatment B showed a gradual improvement and that the mother showed considerable progress in her capacity to calm and contain his emotional state. He reported that there was a notable improvement in the mother’s mood and level of functioning.
Dr E concluded that it is very likely at this stage that the father having contact with B would cause considerable re-traumatisation for both B and the mother, as well as affecting the mother’s capacity to support B’s recovery.

Family Report of Mr A dated 10 April 2013

Mr A, Family Consultant, completed a Family Report ordered by Federal Magistrate O’Dwyer.[24] He conducted a home visit with the mother and children and interviewed the parties separately. He held a short interview with the paternal grandfather. Mr A had the benefit of the material filed with the Court, subpoenaed material and the report about B from Dr E.
[24] Orders made by Federal Magistrate O’Dwyer, as his Honour was then known, on 11 February 2013.
It is significant to note that Mr A, with some 40 years of experience in social work, stated:
This is one of the worst cases of prolonged domestic violence perpetrated by the father against the mother that the writer has encountered. The relationship between the mother and the father, with intermissions, lasted more than 10 years.
He noted that on interviewing the father it appeared that the father was in complete denial about the violence perpetrated by him against the mother and that he denied all physical abuse of her.
He agreed with the opinion of Dr E and stated that, in the circumstances, the reintroduction of the children to their father, especially against the children’s own wishes, would expose the children to the risk of being

re-traumatised.
He reported that each child had expressed a clear view that they did not wish to meet their father. He stated that both children were scared of the father and what he might do to the mother.
He concluded:
Against this shocking background, it is respectfully suggested to the court that orders be made prohibiting contact between the father and the children. Since it is a known feature of battered wife syndrome that women, notwithstanding the injuries and degradation, will re-present themselves to the batterer- as instanced many times by the mother -it is also respectfully suggested that the court also make an order specifically prohibiting the mother from bringing the boys into contact with their father.
The orders he recommended were adopted by the mother in her Further Amended Response.

Subpoena issued to Victoria Police

The Victoria Police records of the father, which were subpoenaed by the mother for the hearing, revealed a number of episodes of violence against the paternal grandfather and the father’s former partner which caused the police to apply for a complaint and warrant for an intervention order against the father on 27 January 2014 to protect his former partner.
The records indicated that the police were making attempts to locate the father to serve him.[25]
[25] Exhibit C.

Relevant Legal Principles

Under the Family Law Act 1975 (Cth) (“the Act”), in deciding to make any parenting order the Court must regard the child’s best interests as the paramount consideration.[26]
[26] Family Law Act 1975 (Cth), s 60CA.
In determining what is in the child’s best interests, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[27]
[27] Ibid s 60CC(2).
In applying the primary considerations, I must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[28]
[28] Ibid s 60CC(2A).
What orders are in the best interests of the children must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Definition of family violence

For the purposes of the Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.[29]
[29] Ibid s 4AB(1).
The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[30] Some examples of situations that may constitute a child being exposed to family violence include:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.[31]
[30] Ibid s 4AB(3).
[31] Ibid s 4AB(4).
My findings about the nature and extent of the family violence lead me to the conclusion that the benefit of the children having a meaningful relationship with the father is outweighed by the need to protect them from the psychological harm of being subjected to family violence as defined in the Act.

Parental Responsibility

Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Equal shared parental responsibility relates to decision making about ‘major long-term issues’, which is defined in s 4 of the Act as follows:
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
The presumption does not apply here because of the family violence. The father has had no contact with the children since he assaulted the mother in their presence in December 2011.
I am satisfied on all the evidence that there are reasonable grounds to believe that the father has engaged in chronic family violence over a significant period of time. The evidence of the Family Consultant, Mr A, and Dr E has also satisfied me that it would not be in the best interests of the children for the father to share parental responsibility with the mother. The parents do not communicate and intervention orders have been made by consent in the past. The mother should have sole parental responsibility for the children.

Additional Considerations

I have taken into account the additional considerations pursuant to s 60CC(3) of the Act.
The children expressed a clear wish to the Family Consultant that they not meet their father. With some justification, the children are scared of what the father might do to the mother. I have taken those wishes into account under

s 60CC(3)(a) of the Act, although I have placed less weight upon them having regard to the ages of the children being nine and six and their immaturity.
I have considered the nature of the relationships of the children with each parent and their maternal grandparents under s 60CC(3)(b) of the Act. The children have had no relationship with their father since December 2011 and their relationship with him prior to that time was marred by family violence. It would appear that they have a good relationship with their maternal grandparents who have supported the mother and the children by offering them temporary accommodation and financial assistance.
Section 60CC(3)(f) of the Act refers to the capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs. I accept the evidence of the mother, the maternal grandmother, Dr E and the Family Consultant and I am satisfied that the father cannot provide for the emotional and intellectual needs of the children. The evidence of the father’s violence against the mother and lack of remorse precludes him from providing for these needs.
Section 60CC(3)(g) refers to the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court believes are relevant. Under this consideration I have taken into account that both children have speech impairment and behavioural issues which are being addressed by the mother. N has severe anxiety and B has been diagnosed with post-traumatic stress disorder. These characteristics are relevant. The children have consistently resided with the mother and she has made progress coping with B on the evidence of Dr E.It would appear that the children have been adversely affected by their experiences living with the father and witnessing his attack upon the mother. It is clear that they require the safety and stability which can be offered by living with the mother and knowing that they will not be required to spend time with the father. The mother’s anxiety is also a factor which needs to be alleviated in the best interests of the children by ensuring that she is not required to communicate or deal with the father about children’s issues.
Section 60CC(3)(i) refers to the attitude to the children and to the responsibilities of parenthood demonstrated by each parent. The chronic history of violence by the father against the mother and his lack of remorse, as reported by the Family Consultant, demonstrate an attitude of neglect and abuse towards the children by the father. These factors also demonstrate a lack of responsibility towards parenthood.
Section 60CC(3)(j) refers to any family violence involving the child or a member of the child’s family.This is a weighty factor of serious significance in this case having regard to the evidence I have accepted. The police criminal history record corroborated the evidence of the mother about the assault upon her.[32] There is no evidence that the children have ever been the subject of any violence perpetrated by the father against them but I am satisfied that the children have witnessed the father perpetrate chronic abuse against the mother.
[32] Exhibit C.
Section 60CC(3)(k) requires consideration of whether any relevant inferences can be drawn from any family violence order made in respect of the child or a member of the child’s family taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter.
The mother was granted an intervention order which the father consented to without admission of the allegations. There is insufficient material for me to take into account that intervention order as no findings were made.
Section 60CC(3)(l) refers to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. In this regard the recommendations of the family consultant that the mother be prohibited from bringing the children into contact with the father are important. It is clearly in the best interests of the children that they not be re-traumatised by such contact. I am satisfied that the orders proposed by counsel for the Independent Children’s Lawyer and the mother are the orders least likely to lead to the institution of further proceedings in relation to the children.
Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. I have accepted the Family Consultant’s recommendation that the mother be prohibited from bringing the children into contact with the father in the event that the mother feels an obligation or pressure to do so in the future. I am satisfied that the mother has agreed to this course and that it is in the best interests of both children to ensure that they are protected from psychological harm from family violence.
Some of the additional considerations are less relevant than others. For example, the practical difficulty of the children spending time and communicating with the father under s 60CC(3)(e) is not relevant as the father’s whereabouts are currently unclear and it would appear that he does not propose to spend time with the children.
Less relevant also is s 60CC(3)(d) of the Act, which refers to the likely effect of any change in the children’s circumstances. Both children are currently living with the mother with whom they have resided since separation. They have not seen the father since December 2011. Having regard to N’s anxiety and B’s post-traumatic stress disorder, they require stability. There is no change proposed for consideration here.

Conclusion

I accept the submissions of counsel for the mother and the Independent Children’s Lawyer that there is an unacceptable risk of psychological harm to the children if they spend any time with the father. I accept that both children are in fear of the father. I make this finding on the basis of the evidence of the mother, the maternal grandmother, the police records of the father, the report of Dr E and the Family Report of Mr A.
I am satisfied that the proposed orders which have been agreed between the mother and the Independent Children’s Lawyer are in the best interests of both children. In reaching this conclusion, I take into account the fact that the father has not had any contact with the children since he assaulted the mother in December 2011.
I am satisfied that having regard to the recommendations of the Family Consultant, the violence demonstrated by the father against the mother in the presence of the children and the wishes of the children, that the father should spend no time with the children. I am satisfied that it would be contrary to the best interests of the children to spend time with the father and that there is a need for a court order prohibiting contact between the father and the children to limit the instigation of further proceedings concerning the children.
Accordingly, I make orders as proposed by the mother and the Independent Children’s Lawyer that, essentially, the children live with the mother, the mother has sole parental responsibility for the children, that the father should spend no time and have no telephone or internet contact with the children, save for that the father be permitted to send the children or either of them a letter or card on four occasions each year.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 8 May 2014

Associate:

Date: 12 June 2014

Annexure A

Documents relied upon by the mother

1.    Further Amended Response filed 18 February 2014;
2.    Affidavit of Mr A sworn 3 April 2014;
3.    Affidavit of the mother sworn 23 April 2013;
4.    Affidavit of Dr E sworn 6 February 2013;
5.    Affidavit of the maternal grandmother, Ms F James, sworn 5 February 2013;
6.    Form 4, Notice of Child Abuse, Family Violence or Risk of Family Violence filed 9 November 2012; and
7.    Affidavit of the mother sworn 7 November 2012.

Documents relied upon by the Independent Children’s Lawyer

1. Affidavit of Mr A sworn 3 April 2014; and
2. Affidavit of Dr E sworn 6 February 2013;

Noting that the Independent Children’s Lawyer did not file an Outline of Case document.

[2014] FamCA 387

8 May 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies