MSL and KMA - [2004] FMCAfam 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MSL & KMA

[2004] FMCAfam 566

FAMILY LAW – Children – contact – application for no contact – family violence issues – apprehended violence order.

Family Law Act 1975 (Cth), ss.68B, 68F(2), 68K, 69VA

A & A (1998) 22Fam LR 756
JG & BG (1994) FLC 92-515
Patsalou (1994) 18 Fam LR 426; (1995) FLC 92-580
A & A [2001] FMCAfam 29

Applicant:

S L M

Respondent:

M A K

File No:

PAM 3035 of 2004

Delivered on:

17 September 2004

Delivered at:

Parramatta

Hearing date:

13 September 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Ms Wade

Solicitors for the Applicant:

Pye Lawyers

There was no appearance by or on behalf of the Respondent

ORDERS

Leave to proceed ex-parte.
All earlier parenting orders are discharged.
The children of the relationship, J A M born 4 June 2000, R E-L M born 9 October 2002 and T A M born 16 March 2004 are to live with the Applicant Mother.
The Applicant Mother is to have the responsibility for making decisions about the day to day and long term care, welfare and development of the children, J, R and T.
Pursuant to s.68B of the Family Law Act and for the personal protection of the mother, the Respondent Father is restrained from:
(a)entering or going within 500 metres of the premises at which the mother resides;
(b)causing or threatening to cause bodily harm to the mother;
(c)harassing, molesting or stalking the mother or;
(d)telephoning the mother.
The Respondent is to have no contact with the children R E-L M or
T A M.
The parties are to submit to parentage testing with a testing laboratory authorised under the Family Law Regulations to determine if the Respondent is the father of the child, T, on the following terms and conditions:
(a)the Respondent and the Applicant on behalf of herself and the child T, must provide the appropriate bodily samples as required by the authorised testing laboratory and will complete all necessary documents within 28 days of the date of this order;
(b)the Respondent and the Applicant must initially meet the cost of half the price of the parentage test report and will pay the sum requested within 28 days of the date of this order;
(c)if the Respondent is established by the parentage test report as the father of the child T, he must repay to the Applicant her costs that occurred as a result of the parentage test report;
(d)if the Respondent is excluded by the parentage test report as the child's father, the Applicant will repay to the Respondent his costs incurred as a result of the parentage test report.
The Applicant must serve a sealed copy of these orders on the Respondent within 14 days
The Application is adjourned to Monday, 11 October 2004, for further mention at 11:00 am.
The Respondent must file and serve any response and any affidavit setting out the facts upon which he relies by 4:00pm on Thursday,
7 October 2004.
The parties are given leave to apply in respect of all or any of these orders on seven days notice;
A transcript of my reasons for this decision is required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3035 of 2004

SHANNON LEANNE MUNCE

Applicant

And

M A K

Respondent

REASONS FOR JUDGMENT

This is an Application by the mother of three children for certain parenting orders and for orders relating to parentage testing. The children's names are J who was born on 4 June 2000, R who was born on 9 October 2002 and T who was born on 16 March 2004.
The mother seeks orders that the children should live with her and that the father should have no contact with them.
She also seeks an order that the parties should submit to parentage testing with a testing laboratory authorised under the Family Law Regulations to determine if the father is the father of the child T.
Whilst the order is not set out in the application, the mother also seeks an order the father not be permitted to institute proceedings for contact during the next three years except by leave of the Court.
The history of the matter is that the parties have never lived together. In this matter the children always lived with the mother. The mother says that they have a warm and close relationship with her.
T, who was only born on 16 March this year, has had no contact with the father at all. The father was in prison when the child was born and since his release from prison he has had no contact with her.
The second child, R, has only had a minimal amount of contact with the father. Again, the father was in prison when she was born and once he was released he only had contact with her for about three months because he was then apprehended and charged with setting fire to the mother's home.
J has had more contact with his father. He had contact from birth until the child was 2 years of age, although at about that time the father was then in prison for a period of some nine months. Once the father was released from prison he saw J again for a period of three months that included the three months the father had contact with R. At that stage, on 12 July 2003, the father was arrested and charged with the offences for which he has served his current sentence.
There is a history of domestic violence as evidenced by the material from the police that has been subpoenaed. The mother has concerns for her personal safety and concerns for the children's safety.
There are apprehended violence orders in force for a number of years. The current apprehended violence order is in force for a period of five years from 30 June 2004. The mother and the three children are the protected persons.
The father's criminal history goes back to the year 2001 in so far as it is relevant to these proceedings. There have been charges for assaults against the father relating to assaults on the mother in 2001. There was an earlier apprehended violence order which saw the father come under notice in the year 2002 for contravening that order.
The father pays no child support and the mother has concerns that the father's name is not on the birth certificate of the youngest child, T, and the father has refused to acknowledge that T is his child. In her affidavit the mother deposed that the father sought DNA testing. The mother is convinced that T is the father's child. The mother seeks orders that the father submit to DNA testing so that parentage can be established.
At present the mother is not able to obtain child support for T as she is unable to prove that the father is the father of T. His name is not entered on the child's particulars of birth, he has not signed any acknowledgment that she is his child and it is not a situation where the parties were married or have cohabited during the relevant period of time.
Unless the mother is able to obtain a declaration under s.69VA of the Family Law Act the mother will not be able to show that she is able to obtain an administrative assessment of child support. The relevance of this is not that the mother expects the father to pay child support, as he has not done so for the other children, but that she is required to seek orders for child support by Centrelink so that she may receive the appropriate assistance from that authority.
She receives the supporting parent's benefit in respect of the children

J and R because she is able to prove that the father is the parent of those children and therefore is liable to administrative assessment of child support.
The mother seeks orders for no contact between the father and the three children and seeks an order that the father be restrained from commencing proceedings for contact for a period of three years.
I would indicate at this stage that I am not prepared to make an order restraining the father's right to seek relief from the Court. True it is that he has filed no documents and has not sought to participate in these proceedings, notwithstanding having been served, but it is a serious step to deny a party the right to seek relief from a Court that has the appropriate jurisdiction. And whilst the mother may not wish the father to commence any proceedings, regrettably for her she must accept the fact that the father's right to go to Court is something that a Court would be reluctant to take from him.
I turn now to the mother's application that there should be no contact between the father and his three children. The reasons given by the mother relate to the history of family violence over a period of time; violence directed towards her and malicious damage directed towards the home.
Sub-section 68F(2) and section 68K of the Family Law Act require the Court to consider family violence issues including the need to protect any child from physical or psychological harm.
There have been apprehended violence orders against the father in the past and there is a current order in existence for five years. There has been a significant history of domestic violence which causes the mother considerable fear and distress. The father has a record of convictions for assault relating to the mother.
The Courts take a serious view of domestic violence, known in the Family Law jurisdiction as family violence. There are a number of authorities which stress the negative effect on a child of violence within the family context. In A & A (1988) 22 Fam LR 756 FLC 92-800 it was held that:
… while the resident parent's belief about whether it is risky to bring a child into contact with the other parent may be relevant in itself, the Court should not avoid attempting to determine what determine what risk really exists.
In the decision of JG & BG (1994) 18 Fam LR 255 FLC 92-515 Chisholm J held that:
(1)in proceedings relating to custody, guardianship and access evidence of family violence is relevant insofar as it assists the Court in determining what orders would best promote the welfare of the children;
(2)the court will have regard to the fact that family violence may be directly or indirectly relevant to the children's welfare in a variety of ways and may be relevant even where it is not directed at or witnessed by the children.
Similar sentiments have been expressed by the Full Court of the Family Court in Patsalou (1994) 18 Fam LR 426 (1995) FLC 92-580.
The mother's application is that there should be no order for contact with any of the children. The mother, through her solicitor, Ms Wade, has referred me to the decision of the Federal Magistrates Court of Australia in A & A [2001] FMCAfam 29. In that case Ryan FM found that it was in the best interests of the children concerned that an order for no contact should be made because making an order for contact, including supervised contact, would expose the children to an unacceptable risk of family violence. The Court counsellor in that case concluded in the Family Report that the children were unlikely to benefit from re-establishing contact with the father.
In my view the situation must be considered in respect of each of the children. The father has had no contact at all with the youngest child, T. She was born whilst he was in prison and he has had no contact with her since his release. The father is a total stranger to T.
In respect of the child R, the father has had minimal contact with her and it is unlikely, given her young age, that she would remember him at all. It is only the child J with whom the father has had any significant contact.
In respect of the two younger children the likelihood is that the contact with the father would be of no benefit to them. The father has shown no interest in them and, indeed, has denied parentage of T. He has had either no contact or virtually no contact with either of them. He does not pay child support nor has he sought any orders for contact with them.
The child, J, is in a different situation and it may well be that the father at some stage seeks contact with him. I will not make an order for the father to have contact with J. I will not make an order that he should have no contact with J either.
I will make an order that there should be no contact between the father and the two younger children.
It appears to me that the mother must be protected from fear of harm or intimidation and there is no reason why any arrangements should be made that would lead the mother into regular contact with the father. At this stage I believe that the mother should be able to rely on her apprehended violence order to protect her from meeting with the father.
In any event I propose to make injunctive orders to protect the safety of the mother pursuant to the provisions of s.68B of the Family Law Act.
It should be quite clear that any attempt by the father, whether it is in breach of the apprehended violence order or in breach of the s.68B injunction, would place him in a situation where he would be liable to arrest.
It is for these reasons that I make the orders in the schedule at the beginning of this judgment.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 7 October 2004