PEYTON & BRIFFA

[2014] FamCA 903

FAMILY COURT OF AUSTRALIA

PEYTON & BRIFFA [2014] FamCA 903

FAMILY LAW – CHILDREN - Undefended – Violence including assault on child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Peyton

RESPONDENT: Mr Briffa

FILE NUMBER: MLC 11552 of 2010

DATE DELIVERED: 19 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldberg

SOLICITOR FOR THE APPLICANT: Lanham Lawyers

THE RESPONDENT: No appearance

Orders

1. That the mother have leave to proceed without further notice to the father.

2. That all extant parenting orders are discharged.

3. That the mother have sole parental responsibility for the children B born … September 1999, J born … May 2002 and R born … November 2001.

4. That the children live with the mother.

5. That the father be restrained by injunction from having any contact with the children.

6. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. That a copy of this order be served by the solicitor for the mother by post to the father at the two last known addresses referred to in the order of Registrar Field made 6 August 2014.

8. That all extant applications are otherwise dismissed.

9. That the reasons this day be transcribed and be placed on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peyton & Briffa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11552 of 2010

Ms Peyton

Applicant

And

Mr Briffa

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 3 June 2014, returnable in the Federal Circuit Court on 25 June 2014.  The applicant is Ms Peyton (“the mother”) who is the mother of three children to the relationship with Mr Briffa (“the father”).  The children are B, who has just turned 15;  J, who in May 2014 turned 12;  and R, who will, in November this year, turn 11.  The significance of this particular case is that on 26 April 2013, consent orders were made by me which effectively created the situation in which the children were to live with the father and he was to have sole parental responsibility for them. 

2. Those orders provided for the mother to spend time with the children under a very restricted and limited arrangement at the contact centre at Suburb C.  The obvious inference from the orders was that, having been consented to by the mother, there was a significant problem with her relationship with the children at that particular time.  The evidence before me arises out of three things.  First, there were two affidavits filed by the mother at the time the applications were lodged.  Those documents that I am relying on are the affidavits filed on 3 June this year and 23 June this year.

3. Secondly, there is an affidavit of service filed in the Federal Circuit Court.  Although it is stamped 21 July, I suspect it was 21 June, having regard to the timing of the hearing in the Federal Circuit Court.  The third issue is the oral evidence given today by the applicant. 

4. Dealing first with the question of natural justice and the father’s knowledge of this particular case, it seems that a process server delivered to the father the documents to which I have referred, personally on 8 June 2014, and he signed an acknowledgment of those documents.  He also confirmed to the process server that he was Mr Briffa.

5. The applicant today has confirmed in evidence that the signature on that document is that of the father.  For reasons which are not at all clear to me, when the matter came before the Federal Circuit Court it was transferred to this court.  It may be that, as the final orders were only made in the preceding April, the learned judge decided that this case had a sufficient history of connection with this court to send it back.  Suffice to say that the father, who had been served personally with the documents and not having attended that day, the learned trial judge transferred it to this court where it came before Registrar Field on 6 August.

6. Registrar Field made a number of orders, most of which are now irrelevant, but the important one was that the order be served upon the father by post.  I have two affidavits, one which was filed and the other which I have been handed and which I have marked as an exhibit, indicating that the relevant order was sent to the two addresses referred to in the orders of 6 August.  There is no indication that those documents have been returned to the sender. 

7. The order of Registrar Field reads as follows:

   In the event the respondent does not comply with paragraphs 2 and 5 of these orders –

   which I interpolate include attending personally and filing a response –

   the applicant has liberty to have her amended initiating application proceed on an unopposed basis.

8. Just after half past 10 this morning, the father was called and did not attend to the call.  I am satisfied that he has had sufficient notice of these proceedings and has chosen not to participate. 

9. What precipitated these proceedings was an incident in May 2014, at which time the father attended the home of the mother and assaulted the oldest child, B.  The evidence before me is that, as a result of that assault, the police were called, the father was arrested, released on bail, attended the Magistrates Court and indicated that, on an application brought by the police for an intervention order, he would contest it.

10. The contested hearing was listed for two weeks later and he did not attend, and the unchallenged evidence before me is that there is now an intervention order favouring the applicant and also B. 

11. Returning to the simple facts of this case, notwithstanding the orders that were made in 2013, a very short time thereafter, the father effectively handed the children back to the mother on the basis that he could not care for them.  Her affidavit is a litany of problems, not only with the children but also with people with whom the father lives.

12. There is an indication that his partner (of sorts) was the subject of some sort of family violence.  There is another woman, whose given name is D, with whom he had some association, and the children complained to their mother that there was some sort of sexual activity which they had either witnessed or overheard involving their father and D.  There is further evidence that the father was, whatever it means, “hanging around with a [female given name of E]”, who she believed to be an “ice junkie and thief”.  All of this would indicate, again on the basis that it is unchallenged evidence, that the father has a problem which might be defined as lacking social skills, but, more importantly, he does not seem to have much of an understanding of the responsibilities of parenthood.

13. Needless to say the children have been living with their mother virtually since just after the orders were made in 2013 and, as a result of his behaviour, the father was arrested and charged.  Since then, there has been no time between them at all.  As a consequence, and probably, more importantly, since after the 2013 orders were made, the mother has been making all of the decisions in relation to the welfare of the children. 

14. Notwithstanding that the application is unopposed and the evidence unchallenged, this jurisdiction is not a default jurisdiction like the civil jurisdictions in the State courts.  The wife needs to prove her case.

15. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that a court must not make an order unless it is satisfied that it is in the best interests of the children that it should do so and, in determining just what is in the best interests of those children, the Court is obliged to consider the matters set out in s 60CC. For reasons that are set out in various authorities, s 60CC is divided into two parts. The first part relates to primary considerations, and the second is the additional considerations.

16. I can take notice of the fact that, in the primary considerations, there was a twin pillars argument, as it was so called, showing a dichotomy between the benefit of the children having a meaningful relationship with both parents as against the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  In 2012, the primary considerations section was amended to add the phrase that, in applying those considerations, the Court is to give greater weight to the consideration of the need to protect the children from the harm that I have just described.

17. This is a classic example where the Court must place the protection of the children ahead of the benefit that they might have from having a meaningful relationship with both of their parents.  Whatever the relationship is between these three children and their father, it must be protected from the sort of violence exhibited in the affidavit of the mother but also the sort of conduct that is referred to in the association that I have described that the father seems to have with other members of the community.  The additional considerations in this case are fairly easily dealt with.

18. I have little doubt that the views of the children are that they just want to be left in peace.  Whether they can have a relationship in the future with their father seems to me to depend not upon the children but on his indication of some form of responsibility.  To that end, I asked the mother, in giving evidence, whether if I simply made these orders she would go back and allow him some time, and she reassured me that she would not, bearing in mind he has, in her view, significant problems.  She needs to be very conscious of the fact that, if this case comes back before the Court again, a judge will have the benefit of these reasons.

19. Another additional consideration is the nature of the relationship of the children with the parents.  Absent some indication of what the father’s position is at the moment and how he wants to conduct his relationship with the children in the future, I have no idea what sort of relationship he currently has.  It is quite clear that he has failed to take the opportunities to participate in decision making relating to long term issues and that that has been left to the mother.  He has also obviously had the difficulty that the police are more interested in protecting members of the community, as a result of which he will face the criminal courts in the foreseeable future and, as such, he cannot spend some time with the children at the moment.

20. One of the questions that the Court is obliged to consider is the likely effect of changes in the children’s circumstances as a result of being separated from one of the parents.  The evidence before me seems to strongly suggest that these children are quite comforted by the fact that their father is not causing the problems that he was up until May 2014. 

21. The court is also obliged to consider the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs.  The unchallenged evidence is that the mother is providing those sorts of material and psychological needs for the children and the father is absent from their lives.  Having regard to the nature of his conduct, one would wonder what he has to offer the children in any event.

22. A very significant issue, in my view, is the requirement that the Court consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.  The mother, who now seems to have her house in order, is providing for the children and I shall draw some comfort from the evidence, to which I shall refer in a moment, from the Department of Human Services.  It seems to me that any parent who physically assaults children cannot be said to be responsible.  The very nature of the allegations that the mother has made, not only in relation to that assault but in relation to his behaviour generally, are completely inconsistent with a responsible parent who must provide some mentoring role as well as a security role for children.  The father seems, on the unchallenged evidence, to have failed miserably.

23. I have already dealt with the family violence issues and I am told, in this case, there is an intervention order, so that must be taken into account. 

24. The last issue relates to the question of whether it will be preferable to make an order that least likely leads to further institution of proceedings.  It is difficult in this case to know what the father will do when ultimately it dawns upon him that parents are not favoured by the Courts if they behave as he has.  In my view, absent his indication as to what he intends to do for these children, it is appropriate that I make final orders. 

25. Before turning to the parental responsibility issues, I make the following observations. As a result of the mother filing a notice of risk to the children, the mandatory reporting provisions were triggered in the state legislation and also in s 67ZW of the Act. That notice triggered a report by the Department of Human Services of 4 August 2014, which sets out the historical background for these children.

26. It is a very sad indictment, I suspect, on both parents that these children have had significant involvement with the Department of Human Services, going right back to 2010.  Just in case it is understood from what I have said that the mother has had no cause for reflection, the Department of Human Services was, at various times, having a very careful look at her.  Even subsequent to the orders in 2013, there have been notifications expressing cause for concern about her unstable mental health and that the children were not attending school.  The department investigated those matters, including issues associated with family violence and parental drug use involving the father.

27. The department investigated all of those and has reported to the Court that, having completed its investigation, it does not substantiate the allegations as against the mother and that the children are not at significant risk of harm in her care now.  That assessment, however, is based on the fact that the father is not having time with the children.  To the extent that the mother, as I indicated earlier, decided, notwithstanding the orders, to allow him some time, she may very well face the fact that the Department of Human Services may take a different view.

28. Section 61DA of the Family Law Act provides that, whenever a court is making a parenting order, it starts from the presumption that it is in the best interests of children that their parents have equal shared parental responsibility. Section 61DA has two provisions that permit the Court to rebut the presumption; one is a mandatory and the other is a discretionary provision. The mandatory provision arises in circumstances where the Court is satisfied that there is family violence found to have occurred. I am satisfied in this case that that has occurred and, accordingly, the presumption is rebutted.

29. In this case, because of the fact that the father is not here and seeking orders, it seems appropriate that I make an order excluding him from the children’s lives into the future and, to the extent that he considers that he has some role in their lives, he can then make the appropriate application to the Court, which will no doubt read the reasons that I am now articulating.  It is appropriate in this particular case that the mother have sole parental responsibility for the children.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 September 2014.

Associate: 

Date:  22 October 2014