PARKIN & FARRELL

[2020] FCCA 2260

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKIN & FARRELL [2020] FCCA 2260

Catchwords:
FAMILY LAW – Parenting – application by the father for a Location Order – where the father was sentenced to five years imprisonment for family violence offences – where the father failed to make full and frank disclosure in his affidavit  about the extent of family violence in his relationship with the mother and where that was revealed only after the father was ordered to issue a subpoena to the police – where the information provided by the police revealed that while the father was in prison the mother approached the police seeking a variation to the ADVO which had been made for her protection to provide that the father was not permitted to try to find her – where the ADVO was amended to provide that the father was not try to find the mother except by order of the court – where the father failed to provide a copy of that ADVO which remains current – where it would not be in the child’s best interests for the court to make a Location Order – application for a Location Order dismissed.  

Legislation:

Family Law Act 1975 (Cth), ss.67L, 67N

Applicant: MR PARKIN

Respondent: MS FARRELL

File Number: NCC 180 of 2020

Judgment of: Judge Terry

Hearing date: 29 July 2020

Date of Last Submission: 29 July 2020

Delivered at: Newcastle

Delivered on: 19 August 2020

REPRESENTATION

Solicitors for the Applicant: Toronto Legal

The Respondent: No appearance

ORDERS

1. The father’s application for a Commonwealth Information Order is dismissed.

2. The father’s application for parenting orders is adjourned to 9.30am on 1 October 2020 for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 180 of 2020

MR PARKIN

Applicant

And

MS FARRELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 January 2020 Mr Parkin (“the father”) filed an application seeking parenting orders in respect of his daughter X born in 2011.

2. He also filed an application for a Commonwealth Information Order pursuant to s.67N of the Family Law Act.[1]

   [1] In the application the section referred to is 67Q which allows the court to make a Recovery Order but this is clearly a mistake.

3. S.67N (1) provides that the court may make a Commonwealth Information Order if it is satisfied that information about the child’s location is likely to be contained in, or to come into, the records of the Department or Commonwealth instrumentality concerned. The application is frequently made to obtain information from Centrelink to aid in service of documents.

4. A Commonwealth Information Order is a species of Location Order and s.67L of the Family Law Act provides as follows:

   In deciding whether to make a location order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.

Background

1. In the affidavit the father filed in support of his application he said that he and the mother commenced a relationship in 2010, that the relationship ended in 2013 and that he last spent time with X in 2015.

2. The father filed Notice of Risk which is a mandatory requirement if proceedings are filed in the Federal Circuit Court. One of the questions asked is the Notice is:

   Has there been family violence or is there a risk of family violence by a party to proceedings or any other person who is relevant to these proceedings?

3. The father answered “No” to this question.

4. However in his affidavit the father said as follows:

   By 2015 Ms Farrell had stopped all contact I had with X, and stupidly, in a desperate attempt to see X I went around to Ms Farrell’s home in the hope I could. When I got there Ms Farrell wasn’t home but her mother was. She was babysitting X. The mother refused to let me see X so I did the most stupid thing in the world. I kicked-in the kitchen door and entered the house.

   In hindsight I realise this was perhaps one of the dumbest things I could have done but I was desperate. I just wanted to see and talk to X.

   Ms Farrell’s mother confronted me in the kitchen and I explained to her that all I wanted to do was see X but she called the police. I didn’t harm or assault the mother in any way and after a few minutes I left.

   Later the police came and I was charged with aggravated break and enter. In 2015 I was sentenced in the City B District Court to a five-year term of imprisonment for this offence to expire in 2020, with a non-parole period of 3 years to expire in 2018.

5. The father also revealed that an ADVO had been made protecting the mother from him and that it had been varied in 2017 but he did not attach a copy of the ADVO to his affidavit.

6. The father was released on parole in 2018 and he said that he had resumed employment and was in a new relationship and would like to resume his relationship with X.

7. The father said that he was seeking a Location Order because he did not know where the mother and X were living.

8. When the father’s application came before me I indicated to his solicitor that I was not prepared to make a Location Order unless further information was provided about the matters which led to the father being sentenced to five years imprisonment. I required him to issue a subpoena to NSW police to obtain the father’s criminal record and COPS events concerning the father and the material produced by NSW Police reveals that the father has an extensive criminal record and has been convicted of or charged with the following offences:

1993

Stealing – bond

1993

Unlawful Entry - $300.00 fine

2000

High Range PCA (according to the COPS records the reading was .205) – 2 year bond and 12 months disqualification

2001

Common Assault – dismissed after a hearing. Involved a third party.

2009

Assault Occasioning Actual Bodily Harm – no evidence offered.

The COPS records indicate that this charge arose out of an altercation with the mother which led to her attending hospital where she was observed to have bruising on both arms and her right side and a scratch on her back

2014

Stalk Intimidate - Fine of $1,100.00.

The COPS records indicate that an ADVO previously made for the mother’s protection had expired on 14 February 2014. On 4 May 2014 the mother called police after the father attempted to enter her home and the mother pushed him away. The mother alleged that the father then yelled degrading abuse from the street. Not long afterwards the father sent the mother text messages saying that he loved her and wouldn’t stop until he got her. The mother blocked his number. The father went to the mother’s workplace and after being required to leave by the mother waited outside. The mother managed to get to a police station and made a report and the father was arrested for intimidation. Following his conviction a further ADVO was made.

2015

Contravene ADVO and Common Assault - father required to enter into an 18 month s. 9 bond.

The COPS records state that the father approached the mother when she was in a beer garden and demanded to know where the child was. The father raised his arm which connected with the mother’s right side. The mother tried to leave and the father grabbed her scarf and top but she broke free. The mother reported the incident to the police but did not want to give a statement. However the police viewed CCTV footage which clearly showed the father assaulting the mother and they arrested and charged him.

2015

Common Assault x 2, Aggravated Break & Enter and commit a serious indictable offence, Common Assault x 2 and Contravene an ADVO. On each charge the father was sentenced to 5 years imprisonment with a non-parole period of 3 years.

The COPS records state that the father had been sending the mother messages about whether she was meeting other men. Subsequently the father found the mother at a venue and accused her of “looking at another bloke”. He told her that he was going to get the child from her house where the child was in the care of the maternal grandmother.

The mother rang the maternal grandmother and asked her to bring the child and the mother’s older children inside and she did so and locked down the house.

The father arrived and banged on the door and demanded entry. He began yelling and kicked one glass window repeatedly which did not break. He kicked another window which shattered. Some of the people in the house hid in a cupboard. The father moved to kitchen window and punched it and broke it and entered the house through this window.

An unnamed person (possibly the maternal grandmother) hit the father on the head with a saucepan. The father pushed the maternal grandmother over yelling “Where is (blanked out) I am going to kill her.” At least one child tried to help the maternal grandmother.

Police had been called and the father attempted to flee but he was arrested by the police and charged with the offences set out above. Police noted that the occupants of the house were hysterical and the mother expressed concern to the police that the father would come back and harm the children or her.

1. The COPS records also revealed that the mother contacted the police on other occasions which did not lead to the father being charged.

2. In 2012 police were called after the parties had an argument over the child. No further action was taken.

3. In 2013 the mother called the police after the parties had an argument which became physical. Both parties were observed to have had some minor injuries. Police applied for an ADVO for the protection of the mother. In 2013 they were called again because of an argument over a laptop but no further action was taken.

4. In 2015 the mother called police alleging that the father had sent her a text message threatening to kill himself. She said that she called the police because X was in the father’s care and she was concerned about X’s safety. The police did a welfare check and were satisfied that the child was safe.

5. In 2015 the mother contacted the police about text messages she had received from the father but the police formed the view that both parties had been intemperate in their exchanges.

6. In 2015 the mother contacted police saying that the father was threatening to kill himself unless she took him back.

7. In 2015 a one year ADVO was made for the mother’s protection.

8. In 2015 the mother contacted the police to ask if X was covered by the ADVO and she was told that she was.

9. In 2015 (five days before the incident which led to the father being imprisoned) the mother was driving with the child when the father forced her to pull over with aggressive driving in another vehicle. The father got out of his car and the mother opened the door of her car to speak to him. She said that the father repeatedly said “I love you, I just love you.” When the mother asked him if he loved the child he repeated that he loved the mother. The mother said that he then became angry and began yelling and that when she tried to close her car door the father tried to prevent it and her leg was slightly injured. Eventually the mother was able to drive off. 

10. A particularly concerning COPS record is one made in 2017. The father was then in prison but the mother went to the police station saying that as a result of certain events she was concerned that the father was trying to find her. She said that she was terrified of the father and was afraid that he might harm X to pay her back. She asked whether the police could extend the ADVO so that the father was not able to locate her by any means.

11. The father mentioned in his affidavit that the ADVO was varied in 2017 when he was in prison but he did not provide a copy of the varied ADVO. The police material contains only a single page of the varied ADVO but it includes the following restraint on the father:

    You must not try to find [the protected person] except as ordered by the court.

Discussion

1. There are significant omissions in the evidence provided by the father in support of his application for parenting orders and a Location Order which rings alarm bells.

2. The father:

   ·Answered “No” to the question in the Notice of Risk about whether there had been any family violence.

   ·Provided minimal and inaccurate information about the incident which led to him being sentenced to 5 years imprisonment.

   ·Failed to reveal his earlier convictions for family violence offences.

   ·Expressed no remorse for the incident which led to his imprisonment and showed no insight into the likely impact on his daughter of being present during the terrifying incident.

   ·Failed to provide any information which would inspire even a glimmer of confidence that he had changed and was not likely to commit family violence offences in the future.

   ·Failed to provide a copy of the 2017 ADVO which would have revealed the condition about him not attempting to locate the mother other than pursuant to an order of the court.

   ·Failed to reveal that the ADVO was current and did not expire until May 2021.

3. I cannot rule out the possibility that making a Location Order would place the mother and child at risk of harm. The father’s solicitor and the process server would both be bound to ensure that the address supplied by Centrelink was not revealed to the father but leaving aside the possibility that it may inadvertently be revealed, once the mother was served other information which appeared on the court file, such as the name of the solicitor or the law firm representing her, might give the father a clue as to the mother’s whereabouts and permit him to locate her.

4. I cannot be satisfied that it would be in the child’s best interests to make a Location Order and I intend to dismiss the father’s application for a Commonwealth Information Order.

5. The father will have to decide what he wants to do with his application for parenting orders and I will adjourn that application to 1 October 2020 for further consideration.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Associate:

Date:             19 August 2020