PAILING & BAINBRIDGE

[2016] FCCA 699

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAILING & BAINBRIDGE [2016] FCCA 699

Catchwords:
FAMILY LAW – Final parenting orders – where father attended at undefended hearing having filed no evidence but where submissions were made – where long history of family violence perpetrated by father is established by the objective evidence – where children’s need to be protected from risk of harm arising from any time or communication with the father.

Legislation:

Family Law Act 1975, ss.60CC, 65Y, 68B, 68C

Australian Passports Act 2005

Applicant: MS PAILING

Respondent: MR BAINBRIDGE

File Number: PAC 2226 of 2015

Judgment of: Judge Altobelli

Hearing date: 29 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

Solicitors for the Applicant: Mahony Family Lawyers

The Respondent in Person

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS

1. That the Mother shall have sole parental responsibility for the long term care, welfare and development of the children X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2012 (‘the children’).

2. That the children shall live with the Mother.

3. That the Father shall not spend time with, nor attempt to spend time with, nor communicate with, nor attempt to communicate with the children. 

4. That pursuant to section 68B of the Family Law Act 1975 the Father, Mr Bainbridge, shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the Mother, Ms Pailing or any of the children X, Y and Z, by any means whatsoever including through any third party and further Mr Bainbridge is restrained from:

   (a)Attending at or being within 100metres of the place of residence of Ms Pailing and/or X and/or Y and/or Z

   (b)Attending at or being within 100metres of any place of employment of Ms Pailing and/or X and/or Y and/or Z.

   (c)Attending at or being within 100metres or any school or educational institution attended by Ms Pailing and/or X and/or Y and/or Z.

5. IT IS NOTED that the above order 4 and each of its subparagraphs pursuant to s. 68B of the Family Law Act1975 are injunctions to which s.68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believes that such orders and injunctions have been breached by the Father, Mr Bainbridge, by either harassing, molesting, stalking or physically harming or threatening to harm the mother, Ms Pailing or any of the children X, Y or Z, may arrest the father without warrant.

6. IT IS FURTHER NOTED that order 1 vests in the Mother sole parental responsibility for the purposes of the Australian Passports Act2005 (Cth) such that the Mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the Father.

7. Pursuant to section 65Y of the Family Law Act1975 (Cth) the Mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

PAC 2226 of 2015

MS PAILING

Applicant

And

MR BAINBRIDGE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case is about three children, X, Y and Z, aged 7, 6 and 3 respectively.  Their mother is the Applicant.  Their father is the Respondent.

2. The matter was originally set down for Undefended Hearing on 29 February 2016.  The Father unexpectedly attended in person, having not participated at earlier stages.  He made it very clear to the Court that he would not be filing any documents.  The Court allowed him to make submissions. 

3. Those submissions were largely disjointed and incoherent, even allowing for the fact that he was representing himself.  It was difficult to detect a consistent line of thought.  He insisted that he was a good father.  He was prepared to start off with any form of contact with his children, but did not believe that his time needed to be supervised.  He thought that he had done nothing wrong in the past. 

4. The Father presented in submissions as loud, animated and abusive at times.  His manner was erratic.  The same could be said for his speech and thought patterns.  The Court could not be sure at the time that he was not under the influence of some substance. 

5. The Father had been given several opportunities to file his documents but had not done so.  While taking into account the Father’s submissions, the Court places great reliance on the objective material before the Court, as well as the detailed evidence of the Mother.  The Mother’s evidence is referred to in the very comprehensive case outline that was prepared on her behalf by Ms Morrison.  I incorporate that case outline, its list of relevant documents, the tendered documents, and, in particular, the chronology into Schedule 1 of these, my reasons for judgment.

6. Both the Mother and the Independent Children’s Lawyer sought final orders. I should add, just to be clear, that a number of documents were tendered as well, including documents produced as listed in the schedule of exhibits. So both the Mother and Independent Children’s Lawyer sought final orders that provided for the children to live with the Mother, for her to have sole parental responsibility, and the Father to have no time or communication with the children. Moreover, a s.68B of the Family Law Act 1975 (‘the Act’) Order was sought restraining the Father from any form of contact with the mother or the children.  In addition, orders were sought about passports and overseas travel.

7. The Father is 32, as is the Mother.  They commenced a relationship in 2007, started living together in 2008, and finally separated in 2014.  The evidence before the Court, which included documents produced by New South Wales Police, the New South Wales Justice Department, including Corrective Services, and the Department of Education all support the Mother’s version of the evidence.  In particular, there is a long history of violence perpetrated by the Father during the period of the relationship both against the Mother and against other persons. 

8. The first recorded assault is in March 2008, and the last incident involving the Mother took place, it would seem, immediately before separation on 22 September 2014 when he threatened to kill her.  The Mother relocated to Western Australia to get away from him.  The Mother had the benefit of a number of Apprehended Violence Orders.  The Father has a long history of criminal behaviour, including violence and breach of Apprehended Violence Orders.  I have previously referred to the chronology that was contained in the Mother’s case outline document.  That chronology speaks for itself. 

9. I incorporate into Schedule 1 of these, my reasons, the discussion of the relevant primary and additional considerations under s.60CC of the Act that are contained in that case outline. All of the evidence in this case satisfies me that the most important consideration in this case is protecting the children from the risk of physical and psychological harm that is presented to them by their own father.

10. The Mother’s evidence in this regard, corroborated by the objective material produced before the Court, is compelling.  The Court is satisfied not just about the risk to the children of physical and verbal abuse and emotional abuse originating from their father, but perhaps more insidiously, the risk that exposure to their father will give rise to the possibility that they will mimic his behaviour, something that the Mother has already observed in her evidence. 

11. The Mother’s concern about the Father’s mental health and drug use is largely supported by the material before the Court.  In an ideal world, it would be better for these children to have a meaningful relationship with their father, but on the facts of this case, the risk of harm to them is too great.

12. The Mother has undisputedly been the primary carer for these children. They are closely bonded to her. They have special needs, and there is some inference to be drawn, at least tentatively, that some of these needs are attributable to their exposure to a violent environment. The current Apprehended Violence Order protecting the Mother is going to expire in November 2016, and on the facts of the case, it is appropriate for the order to be made under s.68B of the Act, noting, of course, that there are challenges to enforcing protection orders under the Act that are not as formidable as the challenges of enforcing state protection orders.

13. There is no evidence before the Court that leads to any concern about the Mother’s capacity to parent these children or to any aspect of her lifestyle that is of concern.  Indeed, her attitude about the children and her responsibilities towards them have, under the circumstances, been exemplary.  Perhaps the opposite applies in relation to the Father. 

14. This Court recognises that it is a major step to, in effect, exclude the Father from the lives of the children, at least during their minority.  However, on the facts of the case, that is a conclusion warranted on the evidence.  The Father’s violence can be characterised as both coercive and controlling.  His presentation at Court was consistent with the person who may well be struggling with mental health and addiction issues. 

15. The Court finds that the statutory presumption is clearly rebutted due to family violence.  The Father needs to understand, however, that just as his circumstances might change for the better, then the Court would be prepared to revisit the appropriateness of these orders. 

16. In conclusion, the Court is satisfied from the totality of the evidence that the orders proposed by the Mother and Independent Children’s Lawyer are in the best interests of those children.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 20 April 2016

Schedule 1

Case Outline of Applicant Mother

OUTLINE OF CASE DOCUMENT ON BEHALF OF
THE APPLICANT MOTHER

FILE NO. PAC2226/2015

PAILING AND BAINBRIDGE

Possible undefended hearing commencing 29 February 2016

A.      Proceedings

These proceedings relate to parenting matters for the children:

1. X born (omitted) 2008 (herein referred to as “X”’)

2. Y born (omitted) 2010 (herein referred to as “Y”) and

3. Z born (omitted) 2012 (herein referred to as “Z”).

B.      Applications

1. Amended Initiating Application filed 19 February 2016.  

2. Other – Notice of Risk filed 13 May 2015

C.    Affidavits

Applicant

1. Affidavit of Ms Pailing filed 19 February 2016 (“AM”).

2. Affidavit of Ms K filed 7 January 2016 (re notice of listing and orders).

D.      Tenders

1. Sleeve 1, Subpoena Material produced by NSW Police under subpoena issued 11 September 2015 (“S1”);

2. Sleeve 3, Subpoena Material produced by NSW Police under subpoena issued 11 September 2015 (“S3”), Tabs M3.1 – M3.19;

3. Further tenders to be confirmed.

E.      Chronology

DATE	EVENT	SOURCE
(omitted) 1983	Father (“F”) born, now aged 32 years.	AM:2
(omitted) 1983	Mother (“M”) born, now aged 32 years.	AM:1
1998	M arrives in Australia.	AM:3
2006	M becomes an Australian citizen.	AM:3
(omitted) 2007	Parties commence a relationship.	AM:4
03/03/2008	F allegedly assaults friend and his girlfriend who was 5 months pregnant. Repeatedly punches the victim and grabs him by the hair, striking the pregnant female in the torso and head in the process. F then threatens the victims with a knife saying words to the effect of “I will fucking stab youse I’m going to harm myself if I can’t get you” and “your blood is mine, I’ll settle this later”. Both victims sustained injuries. A telephone interim AVO applied for. F charged with Assault occasioning Actual Bodily Harm and Common Assault. Charge number is (omitted). Charge dismissed on 7/10/2008 as no evidence offered.	M3.19 S3 S1
2008	Parties commence living together.	AM:5
12/05/2008	F has altercation with a third party over a road incident. F strikes the victim with a shovel and with a wooden stake to the mouth, head and upper body. There were several witnesses to this incident who called police. The victim sustains two shattered teeth and a large wound to the lip causing heavy bleeding.	M3.18 S3
(omitted) 2008	The child X (“X”) born, now aged 7	AM:7
10/07/2008	F charged with reckless wounding.	S1
07/02/2009	While observed to be intoxicated or under the influence of drugs F approaches neighbor and unprovoked threatens words to the effect of “I am going to burn your fucking house down with your kids inside”.	M3.17 S3
11/08/2009	F convicted and sentenced for reckless wounding charge. Is sentenced to 18 months periodic detention commencing 21/08/2009 with a non-parole period of 6 months.	S1
Mid-2009	The parties ceased legally living together, however F continued to stay at M’s home most nights.	AM: 5
(omitted) 2010	The child Y (“Y”) born, now aged 6.	AM:7
09/05/2011	F attended home of victim with another associate and assaulted the victim by punching him in the face and demanding money. F’s associate stabbed victim in the cheek with a screw driver and made threats such as “if you don’t pay up I am going to cut your daughter’s head off and get you”. Victim’s 4 year old daughter present in the home during the incident. Victim accused person in a drug supply investigation at the time of the incident.	M3.16 S3
10/05/2011	F charged with the offence of “demand property with menaces with intent to steal”, on 8 June 2011 matter heard in Sydney Supreme Court, F released on bail.	S1
09/06/2011	F released from (omitted) Gaol and scheduled at (omitted) Centre in accordance with S33 of the Mental Health Act. F noted to be aggressive and hostile to police.	M3.15 S3
11/01/2012	F convicted and sentenced of offence “demand property with menaces with intent to steal”. Sentenced to 18 months imprisonment suspended upon entering bond S12 to be supervised for 18 months by NSW Probation Service.	S1
(omitted) 2012	The child Z (“Z”) born, now aged almost 3	AM:7
2013	F’s violent behaviour towards M increased, F began to threaten to kill the mother and be verbally abusive referring to her as “fucking bitch” and “fucking idiot”	AM:18, 19, 24
06/03/2014	F made threats to a third party victim to burn down his building, also grabbed the victim and held scissors towards him. No formal statement made.	M3.13 S3
14/03/2014	Parties argue and F pulled M’s hair to one side.	AM:23
14/07/2014	The parties argued and F pulled M’s head and smashed it into a wall.  This left a hole in the wall which F and the children later filled with putty.  A third party reported to police that they were approached by F in the carpark and that he said words to the effect of “after all this she will be dead”. It was unknown who in particular F was referring to.	AM:25-26 Tab M3.12, S 3
21/09/2014	The parties argue and F grabs M by the hair and smashes her head into a wall.  F also threatened M, saying words to the following effect: “I am going to fucking kill you” “don’t think you’re taking the kids” and “it’s time like this that I could really fucking hurt you”.  The children are present and are distressed and crying.  M tried to leave with the children and F said to the children “mummy is sick and is not going to be around for long” causing the children to cry and X to ask “mummy are you sick?”	AM:31-40
22/09/2014	F threatened M with a screwdriver in front of the children, saying ““If the kids weren’t here I’d fucken screwdriver you, you fucking bitch.” I just want to fork you.” and “I just want to fucking kill you”.  M and children left the home and went to the maternal grandfather’s home.  F called M 40 times that day and was threatening and abusive.	AM:40-47
23/09/2014	The parties separated after an incident when F verbally abused and threatened to kill M in the presence of the children.  M reported incident to (omitted) Police Station.	AM:6, 47
24/09/2014	M and children relocated to Western Australia to reside with maternal grandmother on the advice of police. F charged with 2 counts of stalking/intimidation against the mother.	AM:48-49 S1
06/10/2014	F called to speak to the children and said to them while on the phone on loudspeaker “I love you. This will be the last time I speak to you, and you will probably end up with nanny and poppy. Whatever I am going to do, I am doing for you.”	AM:56
October 2014	AVO granted for the protection of M and the children from F.  F unable to be served for a period as he was in hiding.	AM:57
Late 2014	F breached the AVO by contacting M on a number of occasions.	AM:58
12/11/2014	Warrant issued for F’s arrest in relation to intimidation charges dated 24/9/2014	S1
12/12/2014	F charged with AVO breach.	S1
13/12/2014	F arrested as breach of bail conditions established.	S1
25/12/2014	F spoke to the children by phone and said to M “if I don’t get to talk to the kids everyday then I am going to make an example out of your dad”	AM:60
06/01/2015	F breached AVO, M made statement to Police	AM:57
13/01/2015	F convicted and sentenced for breach of AVO on 12/12/2014, sentenced to Bond S9 for 12 months.	S1
20/01/2015	M reported F’s breach of AVO	M3.3 S3
03/02/2015	F charged with breach of AVO.	S1
February 2015	M requested to vary AVO to allow F to have telephone contact with the children.  F commenced speaking to the children by phone twice a week.	AM:63
24/03/2015	F convicted of one count of stalking/intimidation dated 24/9/2014, sentenced to enter bond S9 for 12 months. Breach of AVO dated 3/2/2015 withdrawn.	S1
30/03/2015	F pulled over by police for speeding. Was noted to be aggressive and hostile towards police and to appear nervous when a search of his vehicle was conducted.	M3.10 S3
20/04/2015	F assaulted step mother who he resided with. Was verbally abusive calling her a “junky inbred cunt”, grabbed her by the throat and threatened to hit her with her handbag when she tried to leave or a pillow as this “would not leave marks”. When questioned by police victim stated that F’s violent behavior had escalated in recent times and that she felt intimidated by him when home alone.	M3.9 S3
13/05/2015	M initiated family law proceedings	Initiating Application
30/05/2015	F is verbally abusive to M in the presence of children, children appear distressed and try to distract F.	M3.2 S3
03/07/2015	F charged with stalking/intimidation and breach of AVO on 30/05/2015.	S1
07/07/2015	F approaches M in Safety room at mention of these proceedings in Federal Circuit of Australia, Parramatta registry. F verbally abusive and aggressive and court security staff required to intervene.	M3.1 S3
08/07/2015	F charged with breach of the AVO on 07/07/2015.	S1
07/09/2015	Interim Orders Judge Altobelli	Interim orders
16/09/2015	M’s solicitor requests F do drug test in accordance with interim orders. No response received	AM: 100
30/09/2015	F convicted of breach of AVO on 07/07/2015. F allowed conditional bail.	S1
16/10/2015	Matter heard in Sutherland Local Court in relation to F’s charges of stalking/intimidation and breach of AVO dated 03/07/2015. F pleaded guilty.	S1
5/11/2015	Further interim Orders Judge Altobelli	Interim orders
23/12/2015	F breaches AVO by calling M.	AM: 90
12/1/2016	M’s solicitor requests F undertake urinalysis test. No response received.	AM: 100
3/2/2016	M’s solicitor requests F undertake urinalysis test. No response received.	AM: 100
11/2/2016	F breaches AVO by calling M.	AM: 90
February 2016	Police still trying to locate F to charge him with breach of AVO.	AM: 94
19/2/2016	M files Amended Initiating Application seeking no contact and section 68B restraints.