MOORS & SOBEY

[2019] FamCA 382

FAMILY COURT OF AUSTRALIA

MOORS & SOBEY [2019] FamCA 382

FAMILY LAW – CHILDREN – undefended hearing – time and communication - where the children shall spend no time with nor communicate with the father – where the father is restrained under an injunction pursuant to s 68B – where the father did not object to certain final parenting orders on the last occasion for the children to live with the mother and for the mother to have sole parental responsibility – where the father did not file any material or attend Court on the allocated final hearing dates – where the father informed the mother prior to the hearing that he would not be in attendance – where final orders were made on the last occasion between the mother and maternal grandparents – where the relationship between the parties was characterised by drug use and extensive family violence – where the children have been exposed to abuse as well as physical and psychological harm – where the children do not have a meaningful or positive relationship with the father - where the father is motivated by anger and vengeful feelings towards the mother and her new partner – where the children need stability and protection from the father’s behaviour when he is drug affected and/or angry with the mother – where the mother has stablished her life and is providing the children with a safe and happy household.

Family Law Act 1975 (Cth)

APPLICANT: Ms Moors

RESPONDENT: Mr Sobey

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

FILE NUMBER: NCC 298 of 2018

DATE DELIVERED: 5 June 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Powe & White Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

FURTHER TO FINAL ORDER 1 MADE ON 31 JANUARY 2019 [REPEATED HERE]:

1.That all previous parenting orders in relation to the children X born … 2004, Y born … 2007 and Z born … 2011 ("the children") are discharged.

2.That the mother have sole parental responsibility for the children.

3.That the children live with the mother.

4.Omitted intentionally.

5.That the children Z and Y spend time with the paternal grandparents as follows:

5.1From 11.00 am to 1.00 pm on the 1^st Saturday of each calendar month or such other times as agreed between the mother and the paternal grandparents in writing (which may be by way of SMS text messages);

5.2Such time is to take place at the Bowling Club at Town C or such other venue with CCTV as agreed between the mother and the paternal grandparents in writing (which may be by way of SMS text messages);

5.3Such time is to be implemented by the mother or her nominee delivering the children to the paternal grandparents at the venue pursuant to Order 5.2 at the commencement of such time and the paternal grandparents delivering the children to the mother or her nominee at the venue pursuant to Order 5.2 at the conclusion of such time;

5.4If the paternal grandparents do not intend to exercise time with the children pursuant to Order 5.1, the paternal grandparents are to give the mother at least 24 hours’ notice in writing of their intention (which may be by way of SMS text messages);

5.5The paternal grandparents are restrained by injunction from allowing the children to be brought into contact with the father when the children are spending time with them;

5.6If the mother has reasonable grounds to believe that the paternal grandparents have not complied with Order 5.5, Order 5.1 is discharged.

Notations:

A.X may spend time with the paternal grandparents pursuant to Order 5 if she chooses to do so.

B.The mother intends to notify the paternal grandparents of X leaving her care or coming into the attention of authorities such as the NSW Police or NSW Department of Family and Community Services.

THE FOLLOWING ORDERS ARE MADE

1. That the children spend no time with nor communicate with the father.

2. That pursuant to s 68B of the Family Law Act 1975 (Cth) the father be and is hereby restrained from approaching within 100 metres of, entering or remaining at any residence for which the children and/or the mother resides and/or approaching within 100 metres of any place of education where the children may attend such as a school or day care centre.

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 Moors & Sobey 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 NEWCASTLE

FILE NUMBER: NCC 298 of 2018

Ms Moors

Applicant

And

Mr Sobey

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Moors, the mother, for parenting orders [time and communication] to be made in respect of three subject children, girls aged 15, 12 and seven, respectively.

2. There are no relevant orders proposed by the respondent father, Mr Sobey.

The Parties

1. The applicant mother is currently aged 35 years and lives at Town B. Her household consists of herself, the three subject children, her partner Mr J, their child W aged about 18 months, and Mr J’s son V, aged 13 years, from a prior relationship.

2. The mother is occupied as a homemaker and is not currently in paid employment.

3. The respondent father is currently aged 36 years. There is no information before the Court about where the father is living and his current occupation. In the past, he has lived with his parents in Suburb E.

Progressing to trial

1. On 31 January 2019 certain final parenting orders were made with the consent of the mother, the paternal grandparents and the Independent Children's Lawyer. The father was present and to use his words, “did not object to the orders being made”.

2. Those orders provided for the children to live with the mother, who would have sole parental responsibility. There was an order for defined time with the paternal grandparents.

3. On this date, the dispute between the mother and the paternal grandparents was settled by consent.

4. Further, on an interim basis the father agreed to an order that the children not spend time nor communicate with him pending further order, in particular, until this trial.

5. The dispute between the two parents over time and communication was identified as the issue for trial, and directions were made accordingly. Two days were allocated, 5 and 6 June 2019.

6. The mother filed her documents including an Amended Initiating Application proposing that there be no time and communication and that an injunction be made, restraining the father from approaching herself and the children.

7. The father did not file an Amended Response. He did not file a trial affidavit.

8. On the first day of trial, the father was not present.

9. The mother had received a text on the previous afternoon. Read onto the record by counsel, the text was from the father stating he would not be at Court today. The mother was present at Court, legally represented by solicitor and counsel.

10. The matter proceeded by way of short submissions and concluded on the first day.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The [Applicant] mother

   (a)Amended Initiating Application filed 28/02/2019;

   (b)Affidavit of the mother filed 3/05/2019;

   (c)Affidavit of the mother’s partner Mr J filed 3/05/2019;

   Reports

   (d)Family Report dated 19/12/2019.

1. The Response document of the father filed on 22 February 2018 and his affidavit of the same date were read but were of no particular assistance given that the father was at that time seeking residence of the children but had subsequently agreed that they would live with their mother.

Brief History of Relevant Events

1. The parties in this matter had known each other since they were very young children.

2. In 2003 they began a relationship which continued off and on until 2014. The three subject children were born during that period. The mother lived with the children in a house owned by her parents. The father remained living with his parents.

3. When that relationship began, the father had, for the previous six or seven years, been using drugs, including Marijuana, Ice, Speed, Ecstasy and Cocaine. The mother concedes that she too during the relationship used illicit drugs, including Ice, between 2007 and 2016, other than when she was pregnant.

4. The relationship was characterised by drug-use, a variety of driving offences for the mother, violence by the father and abuse by the parties of each other.

5. The relationship continued until 2014 and thereafter from the mother’s perspective the relationship between the parties was over. It seems likely that the father wished for the relationship to continue.

6. In 2015, the mother met her current partner, Mr J, and her life began to become easier and to stabilise.

7. In November 2017 the child of that relationship was born. Unfortunately, that began a period when X, the oldest subject child, became vulnerable to her father’s conduct.

8. In December 2017 X was suspended from school for smoking marijuana. The mother had been unaware of the child using a drug. She confiscated X’s telephone and did not return it to her until after Christmas. There was on the telephone over 400 messages from the father.[1]

   [1] Affidavit of Melissa Moors filed 3/05/2019 par 46

9. In January 2018 the mother noticed that X had cuts on her arms and had started wearing long sleeves. By way of explanation X said she was depressed about her father. Retrospectively, it is apparent that X was under pressure from her father at that time, probably, to leave her mother’s household. The mother took the child to her general practitioner who prescribed an antidepressant. The child refused to attend upon a psychologist.

10. Later in that month, X under the guise of staying with a friend moved into her father’s care. The mother received a text message from X that said “sorry” after the mother had asked where she was and if she was coming home.

11. By 31 January 2018 the mother was sufficiently concerned that X might not be returned to her household that she attended Town F Police Station to report the text messages she was receiving from the father. The mother indicated that the police had advised her that they would charge the father for breaching the Apprehended Domestic Violence Order (“ADVO”) which was then in place.[2]

    [2] Affidavit of Melissa Moors filed 3/05/2019 par 69

12. On 2 February 2018 the mother commenced proceedings in the Federal Circuit Court (“FCC”), seeking primarily that X be returned to her care and that the father spend supervised time with the children in a contact centre.

13. There followed a pattern of time of great conflict between the parents and to some extent between both extended families. Orders were made in the FCC for drug testing. And there was a period of time when X was in the care of the paternal grandparents.

14. In February 2018 it is apparent that X was staying with her father and some of his friends or associates in what she described as a “drug infested feral house”.[3]

    [3] Family Report dated 19/12/2018 par 25

15. On 17 May 2018 the proceedings were transferred to this Court and at that time the paternal grandparents had sole parental responsibility for X. That arrangement did not prove to be a stabilising one for X, and in September 2018 the paternal grandparents allowed the father to be present without notice to the mother when the two younger children came to spend time with them.  Thereafter time ceased between the children and the paternal grandparents.

16. On 10 October 2018 an ADVO was put in place protecting the mother from the father.

17. X returned to live with the mother in November 2018.

18. In January 2019 final orders were made which confirmed all three children living with the mother and the mother having sole parental responsibility for them.

19. In February 2019, the father made a threat to the mother’s partner, and it has to be said, that given he had previously attacked Mr J and caused an injury to his head, that it was a threat that greatly concerned both the mother and her partner.

20. The father also made remarks to X such as “You’re putrid like your mother”, which caused X to continue to self-harm. The mother directed X not to open messages from the father and to delete them. Apparently the child has been compliant with that. Also in that month the mother told the father to “Please, leave them alone”.

The Law

1. In this matter, the only issue for consideration is time and communication between the children and their father.

2. The objects of the Family Law Act 1975 (Cth) (“the Act”) are for children to have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. However, the next object of the legislation is that children are protected from physical and psychological harm.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. These children, especially the older ones and most particularly X, have been exposed to both physical and psychological harm. In my view, it is doubtful that there is any benefit to the children having a relationship with their father at this time, because it is not a meaningful one, it is not a positive relationship.

2. As a result of an interim order made by consent, the subject children have not spent time or communicated with their father for four months. However, the unchallenged evidence of the mother is that the father has made contact on many occasions, mainly, with X, that contact has been stressful for her, she has experienced it as pressure on her which it probably is.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. All the subject children have been exposed to abuse. During the relationship, both parents were drug users. Some neglect of basic needs must have followed. X herself has smoked Marijuana and may have been given Ice to use by her father, but she has certainly seen him using it and seen the effect of it on him.

2. There has been a physical attack by the father on the mother’s partner. The father has undermined the trust and confidence of the eldest child in her mother and step-father. There have been abusive arguments and insults between the parties in front of the children in the past.

Additional Considerations

1. I consider some additional matters under the legislation pursuant to s 60CC of the Act as follows:

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. X, aged 14 in December 2018, was observed to be a deeply troubled young person.[4]  At that time, she was still using Marijuana but was trying to cut down. She had stopped attending school.

   [4] Family Report dated 19/12/2018, par 153

2. In 2019 X was enrolled in a new school and expelled for non-compliance with a direction. She has now been enrolled at TAFE to complete Year 10.

3. In December 2018 X was seeing a psychiatrist and a psychologist. She had been prescribed medication for ADHD. She had harmed herself by cutting parts of her body.

4. X made a clear statement to the family consultant, “I do not want contact with the Sobeys [the paternal family] at all.”[5] 

   [5] Family Report dated 19/12/2018, par 161

5. At that time, and apparently still now, X was getting on well with her mother, step-father and siblings. The obvious priority for X is stability at home, consistency with education and complete abstinence from illicit drugs. Her best chance is in the care of her mother unimpeded by her father’s efforts to encourage her back to drug taking and hostility towards her mother. The influence of the father on X, in my view, has been profoundly adverse.

6. Z, aged 11 in December 2018, was happy in her mother’s household and glad to have X back in the family. She was clear to say she wanted to live with her mother. At that time X was blocking her father on Facebook after he sent cruel messages, “He said I was a poof.”[6] He was texting X, and he said he was going to kill Joe’s mum [a reference to the mother’s partner].

   [6] Family Report dated 19/12/2018, par 166

7. Z’s views are based on her experience and should be given weight. They relate to her feelings of safety in her mother’s household.

8. Y, aged seven in December 2018, was less clear about why, but she was very sure that she wanted to say with her mother, she loved her siblings and external maternal family.

9. She did not have a particularly clear memory of her father, it appears. Taken together, the group of siblings needs to continue the stability that has been established and to be protected from the father’s behaviour on occasions when he is probably drug affected and/or angry with the mother.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father does not pay child support. It is apparent that his priority is not providing for the physical needs of his three school age children.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father appears to be motivated by anger and vengeful feelings towards the mother and her partner. His failure to protect the children from those feelings and his willingness to involve them in the adult conflict, especially X, represents an impairment of parenting capacity.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There is an extensive history of family violence with several ADVOs having been made, mostly with the mother being the person in need of protection.

2. There have, in addition, been a great many verbal disputes between the parties and members of the maternal and paternal families. One or two examples of this history are as follows:

   a)In January 2016, the mother alleges that the father broke into her house, destroyed her belongings, slashed her mattress, stabbed a knife into a photograph of X and herself, cut her clothes up and stole power tools and old mobile phones; 

   b)In March 2016, the father assaulted the mother’s partner with a hand axe, an instrument called an ulu. The mother’s partner required 25 staples to the back of his head. The father was charged with an offense relating to malicious wounding resulting in assault. The father declined to participate in an interview and was charged. He conceded he had been drinking heavily throughout that afternoon;

   c)The father was incarcerated between late 2016 and June 2017. Upon release, he began sending the mother and X harassing text messages. The mother again approached police who put an AVDO in place. In consequence, X became scared to attend school. She would catch the train to school and the father would be waiting at the platform when she got off and would try to talk to her as she tried to keep walking. Sadly, X stopped attending school to avoid this situation;

   d)From mid-2017, the father was sending text messages to X – up to 100 a day telling her to, “Go and kill yourself”, “Go and cut yourself” and “I only have two daughters now”.

1. The father admitted to the family report writer that he had sent those messages, although he asserted that he had believed that Mr J, the mother’s partner, has taken control of X’s telephone. Whether or not that is correct, it is disgraceful behaviour by the father towards his child.

Conclusion

1. Fortunately for the children, the mother has stabilised her own life. Together with her partner, the children feel safe and happy in the mother’s household and, as a sibling group of five, are pleased to be where they are.

2. X has evidently been traumatised, but is making progress, which can only be maintained if she is protected from her father’s willingness to expose her to drug-taking and rejection of her mother.

3. The mother now has the responsibility of being the sole parent for her children and I am satisfied on the evidence that she is committed to taking on that role and protecting the children accordingly.

4. One of the orders sought is for a restraint under s 68B of the Act, which does appear to be significant, given the father’s past history of pursuing both the mother and X by approaching them and placing pressure for a certain line of conduct. That order will be made.

5. There is also an order sought that the children have no time in communication with the father. That order is also made, and it will be clear that the mother is entitled to delete any messages received by way of text or on social media and to direct the children to do the same consistent with the orders.

6. I consider that the orders overall proposed by the mother, which the father has chosen not challenge, are in the best interest of the children, and are made accordingly.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 5 June 2019.

Associate: 

Date:  5 June 2019