Pattinson & Denholm

Case [2022] FedCFamC1F 506

Federal Circuit and Family Court of Australia

(DIVISION 1)

Pattinson & Denholm [2022] FedCFamC1F 506

File number(s): NCC 1279 of 2017
Judgment of: SMITH J
Date of judgment: 8 July 2022
Catchwords: FAMILY LAW – PARENTING – Family violence – Mental health – Substance addiction and abuse – Child suffers significant ongoing psychological trauma – Father seeks four professionally supervised contact visits and two cards a year and school reports – Child 13 and does not wish any contact with father – Child’s expressed views genuine and not coached by the mother – Issue as to extent of family violence – Child’s psychological trauma consistent even with admitted family violence – Father poses an unacceptable risk to child of further psychological harm even with supervised visits. Sole parental responsibility to mother – Child to live with mother – Child to have not time or communication with father – Father not to access school reports – s68B injunction against father consented to by father
Legislation:

Evidence Act 1995 (Cth) ss 79, 108C, 140.

Family Law Act 1975 (Cth) Part VII, ss 4AB, 60CA, 60CC, 60CG, 64B, 65AA, 65D, 68B.

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9.
Cases cited:

A & A (1998) FLC 92-800

B & B [1993] FLC 92-357

Briginshaw v Briginshaw (1938) 60 CLR 336

G & C [2006] FamCA 994

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark in [2009] FamCAFC 92

Stott and Holgar and Anor [2017] FamCAFC
Division: Division 1 First Instance
Number of paragraphs: 192
Date of hearing: 4-6 July 2022
Place: Sydney by Microsoft Teams
Counsel for the Applicant: Mr Wilkinson
Solicitor for the Applicant: Winder Lawyers
Counsel for the Respondent: Mr Willoughby
Solicitor for the Respondent: Braye Cragg Solicitors
Solicitor Advocate for the Independent Children's Lawyer: Ms Blackman
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

NCC 1279 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DENHOLM

Applicant
AND:

MR PATTINSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

8 July 2022

THE COURT ORDERS THAT:

1.All previous parenting orders concerning the child, X, born 2009, (“the child”) be discharged.

2.Ms Denholm born 1978 (“the mother”) have sole parental responsibility for the child.

3.The child is to live with the mother.

4.The child is spend no time and have no communication with Mr Pattinson born 1980 (“the father”).

5.The mother may provide a copy of this Order as sealed by the Court to the child’s school, any extra-curricular activity to which the child attends, and to any health or medical practitioner to whom the child is referred or may attend, including any medical doctor, psychologist, counsellor, mental health nurse, social worker or other health or social work professional.

6.Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Pattinson born 1980 (“the father”) is restrained, and an injunction shall issue, prohibiting him from…

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AGLC
Pattinson & Denholm [2022] FedCFamC1F 506
Case
[2022] FedCFamC1F 506
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Pattinson & Denholm involved a dispute between the parents of a child, X, over parenting arrangements. The primary concern was the exposure of X to family violence and the mental health and substance abuse issues of the father, Mr Pattinson. The mother, Ms Denholm, sought sole parental responsibility, with no contact between X and Mr Pattinson, while Mr Pattinson sought supervised contact and access to X’s school reports.

The court was tasked with determining the extent of the family violence, the impact it had on X, and whether any contact with Mr Pattinson would be in X’s best interests. The court found that X had indeed been exposed to significant family violence, which was sufficient to explain the child’s trauma and psychological distress. Despite the contentious nature of the evidence, the court accepted that X’s opposition to contact with her father was genuine and consistent with her trauma. The court found that Mr Pattinson posed an unacceptable risk of further psychological harm to X, even with supervised visits, and that any contact would not be in X’s best interests.

Based on these findings, the court ordered that Ms Denholm have sole parental responsibility, that X live with her, and that X have no time or communication with Mr Pattinson. Additionally, the court issued an injunction against Mr Pattinson for the protection of both X and Ms Denholm, prohibiting him from contacting them or approaching places where they might be. The court also allowed Ms Denholm to provide copies of the order to relevant parties to ensure compliance with the terms. The court noted that any application for costs should be made within 28 days, otherwise each party would bear their own costs.

Orders

Orders of the court

NCC 1279 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DENHOLM

Applicant

AND:

MR PATTINSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

8 July 2022

THE COURT ORDERS THAT:

1. All previous parenting orders concerning the child, X, born 2009, (“the child”) be discharged.

2. Ms Denholm born 1978 (“the mother”) have sole parental responsibility for the child.

3. The child is to live with the mother.

4. The child is spend no time and have no communication with Mr Pattinson born 1980 (“the father”).

5. The mother may provide a copy of this Order as sealed by the Court to the child’s school, any extra-curricular activity to which the child attends, and to any health or medical practitioner to whom the child is referred or may attend, including any medical doctor, psychologist, counsellor, mental health nurse, social worker or other health or social work professional.

6. Pursuant to s 68B of the Family Law Act 1975 (Cth) Mr Pattinson born 1980 (“the father”) is restrained, and an injunction shall issue, prohibiting him from doing any of the following:

(a) attempting to contact the child or mother by any means, including through a third party;

(b) approaching or coming within 100 metres of any place where the child or mother might reside from time to time;

(c) approaching or coming within 100 metres of any place where the child might attend day care or school from time to time;

(d) knowingly approaching or coming within 100 meters of the child or the mother at another location.

7. Pursuant to s68C the injunction in Order 6 above pursuant to s68B of the Family Law Act 1975, is for the personal protection of Ms Denholm born 1978 (“the mother”) AND X born 2009 (“the child”).

8. If a Police Officer believes on reasonable grounds that Mr Pattinson born 1980 (“the father”) has breached the injunction that Police Officer may arrest the father without warrant.

9. The matter be removed from the list of matters awaiting finalisation.

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

B. These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In view of the very narrow issues involved as the Trial developed and concluded, I consider this is an appropriate matter in which to give oral reasons for decision, rather than reserving the matter for the period of months that might be involved in providing written reasons. Background The parties commenced a relationship in approximately 2007 and commenced cohabitation soon thereafter. They had X in 2009 and separated in about 2013. After that separation, the parties co-parented in an informal arrangement for a number of years, with X living with the mother and spending regular time with the father. The mother raises issues of neglect in that period due in part to the father’s financial position, noting he is on a disability pension, and also she says due to his mental health issues. It appears that, whether or not it was really in X’s best interests at the time, the parties were content to proceed on this basis until about 2016, when simmering conflict between them then increased. On 3 May 2017, the father commenced parenting proceedings. X and the mother identify as indigenous Australians, although the mother told the Court Child Expert, Dr B, that this is not a significant focus for her, and X’s indigeneity was not an additional consideration referred to in closing submissions. X and her mother live in a rented two bedroom property. The mother does not have a new partner and is not currently in paid employment. The mother has a son from another relationship, whose name is Mr C. Mr C is 20 and is a full time university student. The mother, X and Mr C spend time together about once a month. X’s maternal grandmother lives nearby and spends time with X each week. X’s maternal grandfather, who lives in City T, also spends regular time with X when he visits the mother. It seems that these maternal relationships provide X with some support. The father lives by himself in a rented two bedroom premises and does not have a new partner. The father told the Court Child Expert that there were no important relationships for X on his side of the family. It is common ground that there was extensive family violence, as defined in the Act, between the parties, and that X was exposed to at least some of this family violence. The extent of the family violence was hotly contested, and much of the hearing time was spent on this issue, but I note that even the conceded family violence was significant. In particular, there was an event, which was referred to throughout the hearing as the April 2019 event, which occurred for a period of it either five or seven days from the end of March until 3 April 2019. Whilst I will go into the competing evidence about the April 2019 event in more detail later, it is clear on any version of events that during the April 2019 event the parties and X stayed, for reasons which are contentious, within the home and did not depart for a number of days. X did not attend school. It’s not contentious that the parties argued. The father admits to significant acts of family violence during this incident, including destroying at different times the mother’s iPhone, iPad and computer. However, the father denies the alleged acts of choking, sexual assault, other direct physical assaults including holding a machete to the mother’s throat. As I said, I will go into this event in more, detail but even on the father’s version of events, there was significant family violence involved.

Evidence

Evidence Before The Court

It may just be that she has, as a 13 year old, realised just how dangerous this was, when she may not have fully appreciated that when she was only nine.Expert evidence I have considered much of the Court Child Expert Dr B’s evidence already. She considered X’s story to be entirely believable. I note her recommendations are set out commencing at [177] of the Family Report:177. If the Court finds that the mother's allegations of family violence are accurate, and the Report Writer suggests that this is highly likely, then it is recommended that the child live with the mother, that the mother have sole parental responsibility and that the child does not have any time or communication with the father.178. It is recommended that the child continue to access trauma informed psychotherapy. She was cross-examined on the contest as to the extent of family violence. Dr B’s evidence was that, even on the admitted circumstances of family violence by the father, with the parties trapped in the house for five days, X burning her fingers, and X witnessing the father smash various items, that this was more than sufficient to explain X’s trauma. She maintained her view that though X may have been influenced to some extent by the mother’s experience, that X was expressing her true views. Factual findings On the extent of family violence, I am not in a position to make any findings to the requisite standard in section 140 Evidence Act are required to establish the choking, the use of the machete, the physical assaults. However, I am comfortably satisfied and find that the events which clearly occurred, with the father apparently having a mental health episode, breaking the iPad, breaking the computer, breaking the iPhone, the arguing and shouting, the circumstance where, whether it was because the father told her to, as she said, or even if it was because she felt she had to break her own iPad because she was worried it would be used to call people to beat the father, that the agreed events in April 2019 are more than sufficient to explain the terrible trauma that it appears from the notes that X is suffering. I find that X is having panic attacks. She is having difficulty concentrating. I accept Dr B’s view that X is suffering from trauma and that she needs assistance. The fact that she has sent her father a card in September 2019, and then said in November 2019 she did not think he would hurt her, must be taken into context of all of the evidence. In November 2019 she also said was scared he might hurt her. She says she still is. As I have said, it is equally an explanation that, at the age of 13, she looks back and realises that she never really appreciated how dangerous it was. In those circumstances, I am satisfied and find that X has experienced real trauma as a consequence to the family violence between the parties, and, in particular, because of the conduct of the father, and, in particular, as a consequence of the events of April 2019. I am satisfied and find that X’s views that she strongly opposes being required to see the father, whether she thinks he will try and kill her or not, is a reflection of her genuinely-held view that she does not wish to see the father, and that it is consistent with the panic attack she complained of to her counsellor when she accidentally saw the father, which is of great concern.

Decision

Reasons for decision

In summary, I am satisfied and find that X would be exposed to an unacceptable risk of psychological harm by the orders for time, communication and access to school materials proposed by the father, and that this would not be in X’s best interests. I find considerable weight should be given to X’s views, and this is also a basis on which the father’s proposed orders for time and communication and access to her school records should not be granted and the orders I make be made.Decision AND ORDERS The orders about the father seeking medical treatment are a matter for him and do not need to be made. The orders about the mother, I do not think are appropriate. Accordingly, I am satisfied that it is in X’s best interests to make the agreed orders that the mother have sole parental responsibility and that X live with the mother. I will make a section 68B injunction against the father for both X’s and the mother’s protection in terms of the order proposed by the independent children's lawyer, and I will make the order proposed by the independent children's lawyer that the father have no time and no communication with X. If any party seeks to make an application in respect of costs, including the ICL, they should file an application in a case and supporting affidavit within 28 days in the usual way, otherwise each party should bear their own costs. I will make an order also that the mother may provide a copy of this order that I make today to X’s school, or any extracurricular activity, or treating practitioner, or other person, as proposed by the independent children's lawyer. Those are my reasons.

Ratio Decidendi

Legal Principle Established

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