Pellas and Pellas
[2020] FCCA 1465
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PELLAS & PELLAS | [2020] FCCA 1465 |
| Catchwords: FAMILY LAW – Parenting – where at the conclusion of a three day trial the father consented to an order that his children aged 8 & 9 spend no time with him and that he not initiate communication with them – where the mother sought wide-ranging restraints on the father being able to communicate with or approach the children - where the father opposed the making of these restraints – where during the relationship the father perpetrated coercive and controlling family violence which included controlling the mother’s spending, dictating when meals were served and whether lights could be turned on or off and perpetrating physical abuse which included choking her, threating to douse her in petrol and set her alight and placing a pillow over her nose and mouth - where the mother has a genuinely and strongly held belief that the father may kill her or the children – restraints made for the personal protection of the children as proposed by the mother. |
| Legislation: Family Law Act 1975 (Cth) s.60CC |
| Cases cited: Pitman & Bond [2014] FCCA 2016 Pitman & Bond (No 2) [2008] FMCAfam 1316 |
| Applicant: | MS PELLAS |
| Respondent: | MR PELLAS |
| File Number: | NCC 1323 of 2018 |
| Judgment of: | Judge Terry |
| Hearing dates: | 13, 14 & 15 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | Merridy Elphick Lawyers |
| Counsel for the Respondent: | Mr Hogg |
| Solicitors for the Respondent: | Joplin Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Guyder |
| Solicitors for the Independent Children’s Lawyer: | Fielden & Associates - Family & Relationship Lawyers |
ORDERS
BY CONSENT
The Mother shall have sole parental responsibility for the children X born in 2010 and Y born in 2012 (“the children”).
The children shall live with the mother.
The children shall spend no time with the father.
The father shall not initiate communication with the children or either of them.
Pursuant to section 68B of the Family Law Act 1975 and for the protection of the children, each of the parties is restrained by injunction from:
(a)Publishing anything about these proceedings or the related Town B Local Court proceedings on any form of social media.
(b)From allowing the children or either of them to have access to any documents related to these family law proceedings or the related Town B Local Court proceedings.
(c)From allowing any discussion about these family law proceedings or the related Town B Local Court proceedings to occur in the hearing or the presence of either of the children.
AND IT IS ORDERED THAT:
Pursuant to section 68B of the Family Law Act 1975 for the personal protection of the children the father is restrained and an injunction is granted restraining him from:
(a)Approaching within 200 metres of the children.
(b)Attending at or loitering within 200 metres of the children’s place of residence or any other place where the children may reside SAVE THAT the father may travel along C Street and D Street without that being a breach of this order.
(c)Contacting, communicating with or attempting to contact or communicate with the children in person, through another person or through any electronic communication or devices including by telephone, text message, social media, written mail and electronic mail or other communication.
(d)Removing the children from the mother’s care or from the care of any other person.
IT IS NOTED that publication of this judgment under the pseudonym Pellas & Pellas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1323 of 2018
| MS PELLAS |
Applicant
And
| MR PELLAS |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves an application for parenting orders filed by the mother on 28 May 2018. She sought orders that she have sole parental responsibility for X, who was born in 2010, and Y, who was born in 2012, and that the children live with her and spend no time with and have no communication with the father.
The father filed a response seeking time with the children. At trial he proposed that this start with some supervised time for about six months leading in due course to unsupervised time each alternate weekend and for half of the school holidays. The father sought an order for equal shared parental responsibility.
The trial commenced on 12 May 2020 and I heard evidence from the mother, the father, the father’s partner and the family report writer.
The mother’s case was that during the relationship she was subjected to coercive and controlling family violence which took the form of verbal abuse, control of her spending, control of her behaviour within the home including when meals were served and whether lights were turned on or off, threats to harm her, several significant incidents of physical violence and a threat to cause serious physical harm to her father.
It was her case that although the father was an amazing father when X was born he gradually withdrew from showing any interest in the children and began to belittle them.
The mother alleged that the first act of physical violence occurred on 27 November 2016. She said as follows:
Mr Pellas was first physically violent towards me on or about 27 November 2016 when we were in bed. Mr Pellas said to me words to the effect of, “I want the bed. Get out of the bed!” I replied to Mr Pellas, “You can’t kick me out it’s my bed” or words to that effect. Mr Pellas pushed me and then suddenly grabbed me around the throat with both hands and squeezed tightly. I struggled to breathe and I moved my body from side to side in an attempt to escape Mr Pellas’s grip but he continued to apply more pressure. I stopped fighting and laid very still until Mr Pellas let go. Mr Pellas then used his feet and with force, kicked and pushed me out of the bed using both his feet. This caused me to fall heavily onto the ground.
I was terrified that Mr Pellas had become so angry that he used his physical force to push me out of the bed. I ran out of the master bedroom and into Y’s bedroom to get away from Mr Pellas. Mr Pellas followed me into Y’s bedroom and stood over me with his face close to mine yelling at me. I attempted to calm Mr Pellas down. Y got out of bed and stood between Mr Pellas and me, facing Mr Pellas and said to Mr Pellas words to the effect of, “I’ll get my papa over here and he will kill you.” I know ‘Papa’ to be the name used by X and Y when referring to my father, Mr E. Mr Pellas then left the room and returned to the master bedroom.[1]
[1] Mother’s affidavit paragraphs 11 & 12
She alleged that there was another incident on 10 June 2017 and said as follows:
On 10 June 2017, Mr Pellas and I were at home and he was calling me names, saying to me “You’re a fat piece of shit” or words to that effect. Mr Pellas walked out of the house and towards the shed in the back yard and I followed him, trying to reason with him. Mr Pellas turned to me and pointed his finger in my face and in an angry and menacing tone said to me words to the effect of, “If you don’t get out of my fucking shed I will douse you in petrol and set you alight.” I left the shed and returned to the house. In that moment, I believed Mr Pellas would follow through with this threat.
The following day, on 11 June 2017, Mr Pellas and I had a conversation to the effect of:
Me: “Did you mean what you said yesterday?”
Mr Pellas:“Don’t worry, I would never do that. I don’t have enough petrol to pour over your fat arse”[2].
[2] Mother’s affidavit paragraphs 14 & 15
There was also an incident on 26 October 2017 which she described as follows:
On the evening of 26 October 2017, Mr Pellas, the children and I were at home when Mr Pellas said to me words to the effect of, “I want dinner by 7.30”. I asked Mr Pellas words to the effect of, “Can I cook it earlier for the boys?” The children would normally eat dinner much earlier than 7.30pm. Mr Pellas did not like my answer and he aggressively yelled at me, “this is fucking bullshit” or words to that effect. He then stormed out of the dining area where the children were sitting.
Later that evening, Mr Pellas and I went to bed and I fell asleep. I woke suddenly to Mr Pellas shaking me, demanding that I “turn the hallway light off” despite him getting into bed with the hallway light still on. I replied to Mr Pellas words to the effect, “I need to sleep”. Mr Pellas then grabbed the pillow out from under my head and folded it over my face, covering my mouth and nose. I was terrified and I could not breathe properly. I kicked and turned my body from side to side in an attempt to get the pillow off my face. I did not report this incident to the Police at the time because I was scared of Mr Pellas.[3]
[3] Mother’s affidavit paragraphs 16 & 17
There was a further incident on 28 October 2017 which she described as follows:
On 28 October 2017, I was asleep when Mr Pellas woke me up. He was angry, raging and screaming words to the effect of, “I fucking told you to leave the light on! Do as you’re fucking told!’. Mr Pellas pushed me with both hands on my back causing me to fall onto the bed. I pulled myself up and started walking towards the bedroom door when I felt my head jerk back suddenly. Mr Pellas had grabbed my hair and forcefully pulled it. I then felt a push from behind as Mr Pellas pushed me forward onto the bed. I felt immediate pain in the area that Mr Pellas had grabbed my hair and pulled backwards with force. I started crying as I realised what Mr Pellas had done and as the pain worsened.[4]
[4] Mother’s affidavit paragraph 19
Following that incident the mother waited until the father was asleep and called her parents to come and collect her and the children and the parties have been separated since that day.
The mother did not report any of the incidents to the police until 13 December 2017. When she did make a report the father was charged and an ADVO was made for the mother’s protection.
On 4 May 2018 the father pleaded guilty to two counts of common assault and one count of stalk/intimidate. Charges against him arising out of other incidents were withdrawn.
The Fact Sheet prepared for the matter reads as follows:
The victim; Ms Pellas and Accused; Mr Pellas were married and in a relationship for about eight years (8) years. They have two (2) children together; X (7 years old) and Y (5 years old). The family home is F Street Town B.
The Victim reports there has been ongoing domestic violence throughout their relationship however has never reported anything to police previously. The Victim states she is verbally abused and controlled on a daily basis. The Victim has never thought to report any abuse previously as the Accused has always been apologetic later and she thought her behaviour was the cause of the Accused’s abuse.
In the evening of the 26th October 2017 the Victim, Accused and their two (2) children were at home. The Accused demanded the Victim have dinner prepared by 7.30pm. The Victim asked to do this later for the children however the Accused did not like this and became angry. Later the Accused and Victim had an argument about this.
Later the Victim was asleep and was woken by the Accused who asked the Victim to turn the light off. The Victim did not and the Accused became angry again and yelled at the Victim. The Accused eventually turned off the light before returning to bed where he lent over the Victim and picked up her phone which was charging. The Accused threw the phone across the room, no damage was caused by this. The Accused then grabbed an end of the pillow the Victim was sleeping on, folded it over the Victim’s face and held it there for a short time. The Victim was kicking around for a short time before stopping and this was when the Accused as let go. The Victim did not give permission for the Accused to assault her.
The Victim said “You need help. This isn’t right I’ve gotta ring your mum”. The Accused said “don’t”. The Victim got up to get her phone and the Accused said “if you ring my mother I will fucking smash your face in”. The Victim was fearful that the Accused may in fact assault her due to there being previous assaults. The Victim went into the kitchen and phoned the Accused’s parents.
About 9.30pm on the 28th October 2017 the Victim and Accused were home. The Victim was asleep and woken by the Accused yelling at her for a number of things and calling her names. The Victim was fearful of the Accused at this time. The Accused went to sleep on the lounge and the Victim slept in their bedroom. The Accused told the Victim that she had to leave the bedroom light on. When the Victim thought the Accused had fallen asleep she turned the light off but the Accused came into the bedroom and turned it back on. The Accused said “I fuckin told you to leave the light on. Do as you’re fucking told”. The Victim got out of bed, the Accused has pushed her from behind and she has fallen back onto the bed. The Victim did not give permission for the Accused to assault her. The Victim was fearful of the Accused and phoned her father. The Accused said “If your dad sets foot in this house I’ll belt the fuck out of him”.
The Victim’s parents came over immediately. They helped the Victim pack belongings for her, the children and the dog. They left soon after. The Victim and the two (2) children have been staying with her parents since this date.
About 6pm on the 13th December 2017 the Victim has attended Town B Police Station to report these matters. The Victim provided police with a signed statement.
The Victim has not reported these incidents previously as she did not believe that it would warrant police time and the Accused was always apologetic and nice later.
The outcome of the father’s pleas of guilty was that he was fined $750.00 and placed on a 12 month section 9 bond for common assault, fined $300.00 for the common assault which related to the incident on 28 October 2017 and fined $500.00 for the stalk/intimidate.
With an outcome like that it is easy understand why people lose faith in the criminal justice system.
Immediately after the father was convicted of those offences the mother filed an application seeking parenting orders and in due course a family report was prepared.
Although the father had pleaded guilty to the facts I have referred to above, the family report writer who interviewed him said as follows:
The father denies the extent of family violence as described by the mother but does acknowledge pushing the mother. The father also acknowledged the existence of an ADVO and two charges of assault against the mother. The father reported that the mother had hit him or kicked him and that arguments between the two were verbal and fifty-fifty.[5]
[5] Family Report paragraph 22
The family report writer also said as follows:
The father did acknowledge arguments and altercations between the parties and he suggested the conflict was fifty-fifty. The father did acknowledge pushing the mother out of the way because she was blocking a doorway and throwing the mother’s phone. He then mentioned that he pleaded guilty to assaulting the mother and intimidating her, although he believed he took bad legal advice in regard the second offence charged.[6]
[6][6] Family Report paragraph 61
Unfortunately it would seem from cross-examination of the family report writer yesterday that he did not acquaint himself with the facts to which the father had pleaded guilty.
During cross-examination the father said that he pleaded guilty to the charges as a result of a plea bargain. The only admissions he made about family violence were that he threw the mother’s phone, which he was keen to emphasise did not cause it to break, and that he pushed her. He said that he may have placed a pillow over her face but he had no real recollection of this because he was intoxicated at the time.
The father denied the other allegations and it was put to the mother during cross-examination that she lying about some of her evidence and that on other occasions she was embellishing.
The mother’s evidence about family violence was compelling.
The mother was distressed throughout much of her cross-examination but she was not caught out on any inconsistencies or inaccuracies.
It is true that during the relationship the mother did not speak to others about what was happening and she made no reports to the police but that is all too common in domestic violence situations. The mother described taking time after the end of the relationship to even realise the nature of what had been happening and she gave one particularly compelling piece of evidence about how when the father told her, the day after he had threatened to pour petrol over her and burn her, that he would not really have done it because he did not have enough petrol, she laughed. She was clearly distressed about her own reaction to that situation.
I accept unreservedly the evidence the mother gave about the family violence. Apart from the fact that her own evidence was compelling, there were the text messages the father sent to her after some of the incidents apologising for his behaviour; his guilty plea to facts which included the mother stating that there had been family violence throughout the relationship; and the fact that his denials and his profession not to remember what happened during the pillow incident because he was intoxicated were not credible. The father professed to remember throwing the phone and professed to remember that it was not broken but he denied having much recollection otherwise of what had happened. I do not accept that.
The fact that the mother did not immediately remember being dragged backward by the hair and remembered it only later does not detract from the credibility of her evidence. It is not inconsistent with her having been involved in a traumatic incident.
The mother gave compelling evidence about her fears about what might happen to the children in the future. Her counsel submitted and I accept that the court would have little doubt that the mother was fragile and had a genuine fear that harm would come to her and the children if the father spent time with the children or had physical access to them.
He referred to the fact that when the mother was cross-examined about her alleged fear that the father might harm the children if he had physical access to them she said:
I have to accept he would do it, it makes me treasure every single moment I have with them.
She also said that there was nothing the father could do or say that would change her views and when pressed by the father’s counsel she said:
You didn’t see his eyes that last night, I knew if I did not get out I would end up dead.
When the mother was asked if her views about the father’s capacity to perpetrate violence might change if he did some courses and produced certificates she said:
I don’t care if he had a letter from the Pope I don’t care if he brought me 500 certificates I don’t care who the certificates are from. Nothing would satisfy me.
The mother was adamant that in her mind a court order was not going to save the children. Her counsel referred to the fact that in answer to a question about supervised time the mother said:
If he grabs them he can run, he can find a way.
The mother said that she had reflected on the fact that the children might come to resent her if they were unable to spend time with their father because of her opposition to it but said that she would prefer the children to get to 18 and live rather than consent to an order for the father to spend time with the children.
I cannot make a finding on the balance of probabilities the father might do what the mother feared. However it was very clear from cross-examination that the mother’s fears were intense and that the thought of the children spending time with the father caused her deep distress.
The mother has engaged in counselling since the relationship ended and is working closely with her counsellor to deal with issues as they arise but she cannot be expected to overcome her distress or her fear about what the father might do when he denied at trial most of the acts of family violence to which he admitted during the criminal proceedings and denied perpetrating the other significant family violence that I am satisfied occurred.
On the last day of the trial the father changed his position and consented to some orders that were put forward by the Independent Children’s Lawyer. He consented to the mother having sole parental responsibility and to the children living with the mother. He consented to an order that the children spend no time with him and that he not initiate communication with the children or either of them. He also consented to an order about the details of what had occurred not being published on social media or allowing the children to knowingly become aware of what had occurred.
Based on the evidence that I have heard I could have made no different orders.
There was severe family violence in this matter. The father made a few admissions. He is enrolled in a Taking Responsibility course but if he does not admit what he has done it is difficult to accept that there is any prospect of change.
The mother has intense fears about the children’s safety but even leaving aside the fact that I cannot make a finding on the balance of probabilities that the father would harm the children, he would be an appalling role model for the children, having perpetrated this kind of violence on their mother and accepting little or no responsibility for it.
The father did take himself off the screen[7] when it became apparent, as I also noticed, that the mother was distressed at the sight of him. That is to his credit but there is there is nothing in his evidence to suggest that he has any remorse for what he has done or any insight into the impact on the mother of the family violence and indeed how could he when he has made so few admissions.
[7] The hearing took place using Microsoft Teams
I also cannot exclude the possibility that the children might be at risk of exposure to family violence in the future if the father is in another relationship. I am going to footnote to this judgment two cases that I also footnoted in a recent judgment because it is a matter I heard where the father had committed some quite severe family violence on his partner.[8]
[8] Pitman & Bond [2014] FCCA 2016 and Pitman & Bond (No 2) [2008] FMCAfam 1316
The dispute at the first trial was whether the father should spend time with the children. The family report writer supported that. The father had done an extensive course of counselling and in the end I made an order, over the mother’s opposition, that he spend time with the children.
Some years passed and the matter came before a different judge in Darwin because the father had perpetrated severe family violence on a second partner. He is now not seeing the children of his first relationship.
No matter what counselling people do, and no matter how much time passes, these kind of things can happen again.
The father is in a new relationship and that was put forward as an important issue which supported his case that there was limited risk of him being violent in future relationship.
He has been in that relationship for two and a half years but significantly, he and his partner do not live together. They see each other on weekends and the father sees his partner’s children during the week on occasions but they do not live together and the father’s propensity to commit acts of family violence has not been tested in another live-in relationship.
There is a considerable risk, given the nature of what happened during his relationship with the mother, the fact that he made so few admissions, expressed no remorse and showed no insight, that there could be family violence in future relationships.
The fact that there is an unacceptable risk of that occurring is part of the reason why I could not have made an order for these children to spend unsupervised time with the father.
Supervised time might have been another issue but given the nature and extent of the family violence and the mother’s extreme distress at the mere thought of it, that again is not something that I could have considered.
The family report writer unfortunately failed to deal adequately with the family violence issues in this case. He recommended that the father spend time with the children and he suggested that if the court found that the mother’s allegations about family violence were true, the parties should do a parenting after separation course. That is a totally inadequate response to a situation where there has been severe family violence.
The father demonstrated a complete lack of understanding and perhaps to an extent the family report writer did too, about the long-term impact on victims of having been subjected to family violence. The father may have gotten over what happened and moved on. The mother clearly has not and she may never do so. She was distressed at being required to even see the father during these proceedings and I am satisfied that her distress was genuine.
I could not have made the orders that the father was seeking about spending time with the children and in the end he consented to the orders that I have referred to and it is entirely appropriate that I make those orders.
One issue remained in dispute though, and that was whether I should make an order pursuant to s. 68B of the Family Law Act in terms sought by the mother in her amended response.
S.68B of the Family Law Act 1975 provides as follows:
Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The orders the mother proposed would prevent the father from:
·approaching within 200 metres of the children;
·attending at or within 200 metres of their place of residence or other place they may reside;
·communicating with or attempting to contact or communicate with the children in any manner; and without limiting the generality of this order, the restraint extends to contact or communication by telephone, text message, social media, written mail or electronic mail or other communication; and
·removing the children from the mother’s care or from the care of any other person.
The mother’s counsel submitted that the mother was intensely afraid of the father and what he might do and that this order would give the mother some additional comfort in terms of restricting the father having any communication or contact with the children.
The Independent Children’s Lawyer supported orders being made as to the father being restrained from approaching within 200 metres of the children; attending at or within 200 metres of their place of residence or removing the children from the mother’s care or the care of any other person.
Counsel for the Independent Children’s Lawyer submitted that the benefit of making those orders would be to reduce, to an extent, the mother’s level of concern and distress about what might happen for the children. He submitted that it was important for the children that they lived in a household where their mother was not stressed or upset and that this order would assist in making sure that happened.
The father’s counsel opposed the making of the s. 68B order in its entirety on the basis that the father had not done anything which would warrant the making of it. He asked me to have regard to the fact that since the parties separated the father had not tried to approach the children. He had not tried to take the children from the mother. He had not loitered around the mother’s residence. He had not tried to take the children from anyone else. He had not tried to contact or communicate with them and therefore he submitted that there was no basis for the court to make those orders.
He also submitted that there was a practical issue in relation to the proposed orders about the father approaching within 200 metre of where the children were living because of the particular location of the maternal grandparents’ home where the mother was currently residing.
I accept that the father has not attempted to approach the children or the mother while the proceedings have been on foot or indeed since the mother made a complaint to the police in December 2017.
However it is necessary to consider that in the light of what has happened since the parties separated.
Immediately after separation the mother agreed to the father spending time with the children and there were some supervised visits at McDonalds, so the father did not have to do anything untoward in order to see the children.
On 13 December 2017 the mother made a complaint to the police and the father was charged and an ADVO was made, so there was an ADVO in place that the father had to obey.
After the charges were dealt with in May 2018 a further ADVO was made for 12 months. That expired in May 2019 but the parenting proceedings had commenced in May 2018, so from then until now the father has been under the eye of this court, wanting to make the best possible impression so that he could obtain orders from this court about spending time with the children.
Certainly the father has not done anything, but there have been some powerful background factors which have no doubt kept the mother feeling a little more comfortable about the situation.
Once these proceedings are over, there is no ADVO. There are only final orders made by this court and nothing to give the mother any comfort about what the father might do.
Given that a primary reason for making the orders is to give the mother that comfort, the orders should be made, but the orders are also protective of the children because I am concerned about the wording of the order the father has consented to.
The father has consented to an order that he not initiate communication with the children or either of them but what if the children initiate communication with him? There is nothing in that order to stop him responding. The order says that the children shall spend no time with the father. What if the father decides to go within a few feet of the children and perhaps entice them to run to him? There is nothing in that order to stop that happening.
The mother is intensely fearful of anything which might result in the father having any communication with the children or spending any time with them. In my view the orders the father has consented to are not sufficient protection and it is appropriate to make orders (a), (b), (c) and (d) and I include order (c) because in my view the communication order that has been agreed to does not provide sufficient protection against some communication occurring.
In relation to order (b) – attending at or within 200 metres of the children’s place of residence – I note the comment about the fact that the grandparents’ home is on the corner of two main thoroughfares. I am going to amend that order to read:
…save that the father may travel along C Street and D Street.
That may cause some problems in the future if the mother moves to another location that is on a main road, but if she does, if any complaint is made, then the father would have a reasonable excuse if he is simply travelling to get from point (a) to point (b) and in any event when it says attending at or within 200 metres of the children’s place of residence, I am not necessarily convinced of the fact the father drives past would be deemed “attending at”.
What I am minded to do though, is to amend order (b) as well to read:
Attending at or loitering within 200 metres of the children’s place of residence or any other place where the children may reside save that the father may travel along C Street and D Street without that being a breach of this order.
In relation to the communication order I am going to amend that wording to read this way:
Contacting and communicating with or attempting to communicate or attempting to contact or communicate with the children in person, through another person, or through any electronic communication or devices including by telephone, text message or social media.
It is extremely sad for children not to have a relationship with one of their parents. I say that over and over again when I am forced to make decisions which result in that outcome. Not only are they cut off from a parent who may have their good side as well as their bad, they are cut off from a parent who they might look like and who they might share interests with. They are also often cut off, as was pointed out during this hearing, from the paternal family as well. Often, not always, but in this particular case that is likely to be so.
I never make these orders with any sense of joy and it is very clear from her evidence that the mother recognises the loss to the children of this order. She also recognises the risk that the children may come to resent her because of the outcome.
I do not make these orders happily. If the father ever does complete the Taking Responsibility course and has a genuine change of heart, is able to gain insight, express remorse or contrition for what he has done and is able to show that he can walk a mile in the mother’s shoes and try and understand the impact on her of what has happened, he may at some time in the future be able to successfully bring a further application. It might be a little way down the track but it is not beyond the bounds of possibility.
But for the time being I intend to make orders in terms of the minute of final orders which were consented to and an order in accordance with proposed order 5 of the mother’s amended Initiating Application as I have amended it.
I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 26 August 2020
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