Mitchell and Mitchell (No 2)

[2017] FamCA 468

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL (NO 2) [2017] FamCA 468

FAMILY LAW – INJUNCTIONS

APPLICANT: Mr Mitchell

RESPONDENT: Ms Mitchell

INDEPENDENT CHILDREN’S LAWYER: Ms Garwell

FILE NUMBER: AYC 255 of 2013

DATE DELIVERED: 4 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Dart

SOLICITOR FOR THE RESPONDENT: Rama Myers Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Albury

Orders

1. Order 1 of the Orders made by Judge Hartnett on 7 September 2016 is suspended.

2. Mr Mitchell is restrained by injunction from approaching within 250 metres of Ms Mitchell, X, born … 2005, Y, born … 2007, and Z, born … 2010.

3. Mr Mitchell is restrained by injunction from approaching within 250 metres of, or attending at, B Street, C Town, Victoria.

4. Mr Mitchell is restrained by injunction from attending at the M School, D Street, C Town, Victoria.

IT IS NOTED THAT

1. If:

   (a)an injunction is in force under s 68B for the personal protection of a person (the protected person ); and

   (b)a police officer believes, on reasonable grounds, that the person (the respondent ) against whom the injunction is directed has breached the injunction by:

   (i)causing, or threatening to cause, bodily harm to the protected person; or

   (ii)harassing, molesting or stalking that person;

   the police officer may arrest the respondent without warrant.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 255 of 2013

Mr Mitchell

Applicant

And

Ms Mitchell

Respondent

REASONS FOR JUDGMENT

1. Interim orders are sought, pending the further interim hearing of this matter on 8 May 2017, being a suspension of the Orders made by Judge Hartnett providing for the children to spend time with and have contact with their father and being Orders pursuant to s 68B of the Family Law Act 1975 being an injunction for the personal protection of the children of the relationship and for a parent of the children of the relationship.  I am asked to rely upon the following material:

   a)Affidavit affirmed by Ms Mitchell on 20 March 2017;

   b)The Single Expert’s report prepared by Ms I dated 7 April 2017; and

   c)Documents provided from the Office of the Local MP and documents provided by the New South Wales Police in relation to an incident occurring in January of this year. 

2. The incident at the Local MP’s office, which is the subject it appears of admissions on the part of Mr Mitchell to the New South Wales Police, involved an incident whereby Mr Mitchell made threats to take a kitchen knife and to kill Ms Mitchell.

3. Subsequent to that date, a Single Expert’s report has been prepared.  I am directed in particular to [229] of that report and page 56 of the report which contains summaries of the opinions expressed by Ms I.  Paragraph 229 of that report speaks to a high risk of harm for the children in Mr Mitchell’s care, in particular due to the recent threat of homicide being a reference to the threat made at the Local MP’s office.  The recommendations at the end of the report provide for the children to live with Ms Mitchell and for a complete cessation of contact between Mr Mitchell and the children pending further psychological intervention with Mr Mitchell. 

4. Noting that these are interim proceedings and that there is incomplete material before me, but noting that the material seems to corroborate a threat to kill Ms Mitchell, noting also the primacy given within  the primary considerations set out at s 60CC(2) being

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

   it is appropriate pending the further hearing on Monday for the Orders that the children spend time with the father to be suspended. 

5. It is further appropriate under circumstances where although there is an intervention order in place the intervention order does not cover the children, that there be orders made pursuant to s 68B for the protection of both Ms Mitchell and the children. Such a course is rendered necessary by the nature of the threat to kill, the corroboration of that threat, and the significance ascribed to that threat in the report prepared by the Single Expert.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 May 2017.

Associate:

Date:  5 July 2017