MORTON & ALLAN

[2015] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTON & ALLAN [2015] FCCA 1477

Catchwords:
FAMILY LAW – Interim parenting – whether the father should spend no time with the children, or supervised time – where no contact since October 2014 following a violent incident – where the parents and children have all been exposed to and suffer from trauma as a result of being refugees – to what extent Good & Goode might apply to cases where there are risk of harm issues to children – where even supervised time in a contact centre might expose the children to risk of re-traumatisation – nature of the violence perpetrated by father – reference to Best Practice Principles – where the potency of the violence was high and included threats to kill.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS MORTON

Respondent: MR ALLAN

File Number: WOC 1069 of 2014

Judgment of: Judge Altobelli

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Wollongong

Delivered on: 15 May 2015

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW

Solicitors for the Respondent: Rachel Stubbs & Associates

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS PENDING FURTHER ORDER

1. That the Children, W born (omitted) 2006, X born (omitted) 2008, Y born (omitted) 2009 and Z (omitted) 2002, live with the Mother.

2. That the Children have no contact with the Father.

3. That the Father, other than with the written consent of the Mother, is otherwise retrained, pursuant to Section 68B of the Family Law Act 1975 from:

   (a)Attempting to contact the Children by any means, including through a third party;

   (b)Approaching or coming within 100 metres of any place where the Children might from time to time reside;

   (c)Approaching or coming within 100 metres of any day care centre or school which the Children might attend or at which they are enrolled; and

   (d)Pursuant to Section 68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the father against whom the injunction is directed, has breach the injunction or has otherwise caused or threatened to cause bodily harm to the Children, or is harassing, molesting or stalking the Children that Officer may arrest the Father without warrant.

FURTHER ORDERS

1. That the matter be adjourned to 19 August 2015 at 9:30am for Mention.

2. That the parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers regarding the appointment of an expert.

3. That liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1069 of 2014

MS MORTON

Applicant

And

MR ALLAN

Respondent

ORAL REASONS FOR JUDGMENT

Introduction

1. In the matter of Morton and Allan, I provide the following reasons for judgment.  The matter came before me for interim hearing on 23 April 2015, about three weeks ago.  I reserved my judgment because of the voluminous documents that had been tendered in evidence.  In hindsight, I think reserving judgment was also wise just to provide additional time to consider what I believe is quite a difficult case. 

2. At the outset I wish to record how much I was assisted by the solicitors for both the Father and the Mother in terms of their preparation of the case and the way in which the evidence has been brought together and the very thoughtful submissions that have been made.

3. The case outlines that were provided by all the solicitors, including the Independent Children’s Lawyer, were as always, very helpful to the Court.  The Court is conscious of the amount of time and effort and, therefore cost, that goes into preparing these resources.  It makes a difference in these particularly difficult cases. 

4. The issue that is raised in this case is a very narrow one, but a very important one and indeed, a complex one.  For all practical purposes, the Court must decide whether on an interim basis as proposed by the Mother whether there should be no contact at all between the children and their father; or as proposed by the Independent Children’s Lawyer, there be supervised contact at Catholic Care if the children indicate to the Independent Children’s Lawyer their willingness to do so; or as proposed by the Father, that the children spend time with him initially at the supervised contact centre, with the older children having the choice to opt out.  In each case there are detailed minutes of order and I will incorporate those minutes as schedules into these, my oral reasons for judgment. The Mother’s minute of order is contained in Schedule one, the Father’s in Schedule two and that of the Independent Children’s Lawyer in Schedule three.

Background

1. The children are aged 13, 8, 7 and 5 respectively.  They currently live with their mother and have no time or communication with their father.  This followed a violent incident in October 2014.  There is a final Apprehended Violence Order (“AVO”) in place protecting both the Mother and the children for a period of two years.  The Father was charged and convicted of assault occasioning actual bodily harm, stalk and intimidate, destroy or damage property and common assault.  He was initially sentenced to nine months imprisonment with a non-parole period of six months, such was the perceived severity of the offence by the learned Local Court Magistrate.  On appeal, however, this was reduced to a suspended sentence on 27 February 2015. 

2. It is common ground and is plainly apparent from the evidence that has been filed in this case that both parents and the children have had very traumatic lives as a result of the civil war in the (country omitted), their flight from (country omitted) and (country omitted), their experience as refugees and then their subsequent migration to Australia.  . 

3. The Mother relied upon the following documents:

   ·Affidavit of Mr Allan sworn 18 February 2015;

   ·Response filed 19 February 2015;

   ·Notice of Risk filed 19 February 2015; and

   ·Child Inclusive Conference Memorandum of 16 April 2015.

4. The Father relied upon the following documents:

   ·Affidavit of Ms Morton sworn 18 December 2014;

   ·Affidavit of Ms Morton sworn 24 February 2015; and

   ·Affidavit of Ms Morton sworn 9 April 2015.

5. The following documents were tendered as evidence:

   ·Exhibit A1 - documents produced by Dr L pursuant to subpoena

   ·Exhibit A2 – documents produced by (omitted) Local Health District pursuant to subpoena;

   ·Exhibit A3 - documents produced by (omitted) Pre-School pursuant to subpoena;

   ·Exhibit A4 - documents produced by (omitted) Hospital pursuant to subpoena;

   ·Exhibit A5 - documents produced by (omitted) Medical Centre pursuant to subpoena;

   ·Exhibit A6 - documents produced by New South Wales Police pursuant to subpoena;

   ·Exhibit A7  - documents produced by (omitted) Public School pursuant to subpoena;

   ·Exhibit R1 – Child Inclusive Conference Memorandum of 16 April 2015; and

   ·Exhibit R2 – documents produced by the department of Family and Community services pursuant to subpoena.

The Applicable Law

1. The applicable law is contained in Part VII of the Family Law Act 1975, and I will incorporate into these reasons a number of relevant sections from the Act as well as a number of relevant extracts from the Full Court’s decision in Goode & Goode. 

2. In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.

3. The objects and principles of Part VII are set out at s. 60B:

   60B  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)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

4. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

6. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  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.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  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;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  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;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  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, 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;

   (l)  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 child;

   (m)  any other fact or circumstance that the court thinks is relevant.

7. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

1. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

2. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. It does seem to me, however, that the more I think about the applicability of what the Full Court said in Goode & Goode about interim hearings, that those comments may well have been apposite in a case where the issue is, in effect, dividing time between the parents. Goode & Goode was, of course, itself a high conflict case.  However, it could not be said that Goode & Goode involved issues of risk of harm to the children.  Hence, one can only ruminate from the bench about whether, and if so to what extent, some of the Full Court’s comments about how interim proceedings are to be conducted in cases that involve such serious allegations as this one in fact apply.

4. I have already referred to the very helpful submission that I received from all at the Bar Table and the written submissions contained in the outlines. 

Discussion

1. I want to get straight to the heart of the matter. If supervised time at a supervised contact centre exposes the children to a risk of harm, or more precisely, and to pick up the words of s. 60CC(2)(b) of the Act, creates the need to protect them from the various matters set out in the section, then, there should be no contact whatsoever pending a more fulsome evaluation of the evidence, especially expert evidence. If, conversely, supervised time at a supervised contact centre does not raise those risks, the matters that are referred to in s. 60CC(2)(b), then it must follow that supervised time will be ordered.

2. Section 60CC(2A) is quite clear. It is not that other considerations in this case are irrelevant. They most certainly are relevant. But in the present context they are additional considerations, not primary ones. As it turns out, some of the additional considerations contraindicate any time with the Father at all. For example, the s. 60CC(3)(a) consideration about the children’s views and the s.60CC(3)(j) and (k) considerations dealing with family violence. But, as I say, the focus initially must be on the s. 60CC(2) considerations.

3. The solicitor for the Father submits that supervised time at a supervised contact centre is in a safe and structured environment, and I accept that submission to a certain extent.  The solicitor for the Mother expressly, and the Independent Children’s Lawyer impliedly, raised concerns about the potential adverse impact on the children regarding even supervised contact with their father in the structured environment of a contact centre, because, they argue, the children will be re-exposed to a person who they have witnessed perpetrate family violence against their mother in their presence.  What is asserted is the implied risk of re-traumatisation.

4. The Court doubts that the Father disputes the contention that the children were present, at the very least, during the October 2014 violent incident that led to his being charged, convicted and sentenced.  But even if he did not concede this, the objective evidence before the Court, especially the COPS records, clearly point to this.  The incident  in question was a particularly violent one and I am going to incorporate into these reasons the COPS record, which is that of 11 October 2014.

   BETWEEN 11:00PM ON Friday the 10^th of October, 2014 and 12:00am on Saturday the 11^th of October, 2014 the Accused has arrived at the Victim, Mr ALLAN’S, home of (omitted).  The Accused was consuming alcohol throughout this time, being a bottle of red wine, it is unknown how much intoxicating liquor was consumed.  About 2:00am on Saturday the 11^th of October, 2014 the Victim/Witness, Z, awoke to hear his father, the Accused and his mother, the Victim arguing.  Z explained to Police that they were arguing over an injury he received at school whilst playing soccer, with the Accused blaming the Victim, ALLAN, for the injury.  The Accused was heard to say to victim, “I will kill you”.  This was heard to be said on more then one occasion.  Z further explained that the Victim requested the Accused to leave the premises, at this time the Accused has grabbed the Victim, ALLAN, by the hair and started to punch the victim in the head.  Z described the assault to Police as the Accused punching the Victim “more then ten times” and as “hard as he could”, Z further explained that the Accused was pulling her hair out.  Fearing for his mother the Victim/witness, Z, has stepped in between the parties and tried to stop them; with the Accused continuing to punch the Victim ALLAN, over the top of the witness/victim, Z. During this assault the Accused has pushed the Victim, Z.  The Victim, Z, also explained that both W and Y (7 years old) and X (6 years old) intervened in attempts to stop the assault.  The Accused has run from the location, through the laundry and out the front yard of the premises.  Police arrived a short time later with Ambulance in attendance. Police spoke with the Victim, Mr ALLAN, who was disorientated and confused.  The Victim was subsequently taken to (omitted) Hospital for treatment.  Whilst at the premises Police obtained a series of photographs of the Victim’s hair strewn through the hallway, into the laundry and out front yard just in front of the laundry door.  Police also sighted a bald patch on the top of the Victim, Mr ALLAN, head.  The Victim was complaining of headaches and chest pain.  W state to Police that she was scared of her father and X was visibly upset.

5. Interestingly, the Father’s own evidence about the violence is in itself quite graphic.  The fact sheet that is tendered in evidence, and indeed was candidly provided by the Father himself, is quite clear. 

6. Having regard to the evidence before the Court and recognising that it is untested, the question is, is there the need to protect the children from the psychological harm that might arise from their spending time with their father, whether this risk be described as re-traumatisation or something else?

7. The Court has decided that there is a risk.  There is a need to protect the children from the risk of this psychological harm.  Pending further evidence, therefore, there should not even be supervised contact.  The reasons for this can be reduced to just a number of points. 

8. Firstly, the incident on 11 October is a very serious one.  Ms O’Donnell for the Father submitted that it was separation instigated family violence.  She quite appropriately referred the Court to the Best Practice Principles.  But even if that were the case, and I must say that the impression, and it goes no further than an impression at this stage, formed from the evidence overall, seems to suggest that it wasn’t just separation instigated violence.  But even if it were, the fact is that the potency of that act is very high. It was physical violence accompanied by threats to kill. 

9. The next point is that the children were physically present at the time.  Indeed, the police records suggest that the older child, Z, stepped in between her mother and father whilst the assault was taking place.

10. Thirdly, even if there were no evidence of the trauma that this would cause the children, the Court would be prepared to infer it.  But there is evidence of this in the Mother’s Affidavit, which the Father is hardly in a position to contest.  In any event, the Child Inclusive Conference Memorandum, which of course forms part of the evidence, is consistent with the children being traumatised. 

11. The next point is that the need to protect the children is, in this Court’s opinion, demonstrated, if not exacerbated, by the Father’s response at the time of his arrest.  The records of the arrest and charge indicate as follows, and this is now a COPS entry at 11 October 2014 at 8:55am:

    About 7.45 am on the morning of 11 October 2014, police attended unit (omitted), (omitted).  Police knocked on the door and were greeted by the accused.  The accused was cautioned and placed under arrest before being conveyed to (omitted) Police Station where he was introduced to the custody manager.  The accused was read, and explained, his rights whilst in custody and offered the opportunity to be interviewed regarding this incident.  The accused politely declined to be interviewed, stating to the police, ‘Maybe I lost my temper, but this is a family problem.  We have come so far.  I understand that I’m here because of the law, but it is a family issue’. The accused was then charged with the matters before the court.

12. The Father’s characterisation of what occurred as merely a family problem, or a family issue, is deeply disturbing, particularly when seen in the broader context of the Mother’s solicitor’s submission in relation to his lack of insight about the event in question and his denials of pre‑existing family violence.  Family violence is not a family problem.  Family violence is not a family issue.  It is an insidious social problem. 

13. Ms O’Donnell acted for the Father. I think it should be recorded that Ms O’Donnell said, in my opinion, everything that could possibly be said on the Father’s behalf in this case, but she made a very powerful submission on the Father’s behalf.  She said that, and I am not sure that this is a quote, but it’s the best I can do to recall what she said:

    The memories of the younger children would be frozen at the point of their last contact with their father. 

    Now, of course, her submission was that this was not a good thing and that, taking a long-term view, this needs to be changed and that, therefore, the restoration of the Father’s time with the children was exceedingly important. 

14. Whether Ms O’Donnell meant this or not, inherent in her submission about the children’s memories being frozen at that time, is the recognition that it was a highly traumatic memory that is frozen in their mind.  Their mother was battered and beaten by their father in front of them.  Pieces of the Mother’s hair that had been ripped from her scalp by their father was strewn around the house.  They heard him say to their mother, “I will kill you.”  They saw him punch their mother to the head more than 10 times as hard as he could.  The younger ones saw their older sibling, Z, bravely step in between the Father and the Mother to try to stop the assault.  The younger ones saw their father continue to punch their mother over the top of Z and they saw their father push Z away.  The younger ones themselves tried to stop the assault.  They saw their mother try to run away.  They saw the police and the ambulance come.  They saw their mother confused and disoriented.  This is the frozen memory of their father. If this is not a traumatic memory, I don’t know what it is. 

Conclusion

1. Why would the Court take a step that potentially re-traumatises the children in these circumstances?  The orders sought by the Respondent Mother are, for the time being, in the childrens’ best interests.  As soon as there can be an expert evaluation in this case, the issue of the Father’s time with the children must be re-examined.  For the time being, the risk to them is such that it is not appropriate for him to have any contact or communication with them.

2. Issues of parental responsibility do not arise in this case as being foremost in the Court’s mind.  I do not think it is appropriate, in the circumstances, for me to deal with the parental responsibility issue and I think that the orders I have made are appropriate for the children anyway.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  15 September 2015

Schedule One

Mother’s Minute of Order

1. That the children live with the Mother.

2. That the children have no contact with the Father.

3. That the Father, other than with the written consent of the Mother, is otherwise restrained, pursuant to Section 68B of the Family Law Act 1975 from:-

   (a)Attempting to contact the children by any means, including through a third party;

   (b)Approaching, or coming within 100 metres of any place where the children might from time to time reside.

   (c)Approaching or coming within 100 metres of any day care centre or school which the children might attend or at which they are enrolled.

   (d)Pursuant to Section 68C of the Family Law Act 1975 if a Police Officer believes on reasonable grounds that the Father against whom the injunction is directed, has breached the injunction or has otherwise caused or threatened to cause bodily harm to the children, or is harassing, molesting or stalking the children that Officer may arrest the Father without a warrant.

Schedule Two

Father’s Minute of Order

1. That the children Z (born (omitted) 2002), W (born (omitted) 2006), X (born (omitted) 2008) and Y (born (omitted) 2009) live with the mother.

2. That the children spend time with the father at such times and on such dates as are nominated by the CatholicCare Supervised Contact Centre at (omitted) (‘the Centre’), with such time to be supervised by staff at the Centre and with the parents to share equally in the costs of such supervised contact.

3. That, without any admissions, the father is to be restrained from consuming any alcohol during the time he spends with the children or within 12 hours of the children coming into contact with him.

4. The father is to attend all appointments and follow all directions of his treating psychologist.

5. That both parents are to refrain from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the children; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their families in the presence or within the hearing of the children.

6. That the mother will inform the father as soon as possible of any medical emergencies or serious medical problems suffered by the children and/or any specialist medical doctor appointments involving the children, with such information to be relayed via the parties’ legal representatives.

7. That each of the parents are to be permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s), sporting bodies and/or other organisations to facilitate this.

8. That the mother will provide full particulars of any medical practitioner, health service provider or institution attended by the children (with such information to be relayed via the parties’ legal representatives) and provide any authority or direction necessary to enable the father to obtain all necessary information concerning the children.

Schedule Three

Independent Children’s Lawyer’s Minute of Order

1. That Pending further order the children Z born (omitted) 2002, W born (omitted) 2006, X born (omitted) 2008 and Y born (omitted) 2009 live with the mother.

2. That the Independent Children’s Lawyer make an application to the Legal Aid Commission to seek funding for an expert report to be prepared to determine suitable parenting arrangements for the children.

3. That the Independent Children’s Lawyer have liberty to relist the matter on 7 days’ notice to the court.

4. That the parents within 7 days sign all documents necessary to effect the intake assessment for Children’s Catholic Care.

5. That each parent is to comply with the following:

   (a)Comply with all reasonable rules of Catholic Care ; and

   (b)Comply with all reasonable requests and directions by the staff of Catholic Care

6. That prior to the expiration of the waiting period of approximately three months with Catholic Care the Independent Children’s Lawyer meet with all of the children to determine if any of the children are willing to commence spending two hours supervised time with the father at Catholic Care each fortnight at times and on a day as nominated by Catholic Care and agreed by the parents.

1. That if after the assessment intake procedure Catholic Care is unwilling or unable to provide supervision as set out in these Orders, then each party has leave to restore the matter to the list within 7 days written notice to the Court and to the other party.

2. That the father not consume alcohol or drugs in the presence of the children or for a period of 12 hours before and during any period the father spends any supervised time with the children.

3. That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child/ren and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child/ren.

4. That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the child/ren and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the child/ren.

5. That the mother provide to the father on a regular basis, copies of all school reports, any other reports on school progress and behavioural issues in relation to the child, as soon as practicable after they are received and that each party shall pay one half of any associated costs of photocopying and postage.

6. That pending further Order the father be restrained from attending the place of residence or any schools where the children attend.

7. That the father continue with counselling with Dr L as recommended by his treating medical practitioner and accept any recommendations made by the counsellor.

8. That the parties arrange to enrol in a Parenting Orders Program with Relationship’s Australia, (omitted) within one month from the date of these orders.