Pilchar & Brown

[2008] FamCA 355

FAMILY COURT OF AUSTRALIA

PILCHAR & BROWN [2008] FamCA 355

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Whether the child should spend any time with the father – The father has been violent towards the mother and the child – Independent Children’s Lawyer is opposed to the child spending time with the father – Evidence of abusive behaviour by the father to the mother and others is so serious as to indicate that it is contrary to the child’s interests to spend time with his father – Interim orders made for the child to spend no time with the father and have no communication with him – Child is to live with the mother

FAMILY LAW – CHILDREN – Parental responsibility – Child’s best interest are served if the mother has sole parental responsibility

FAMILY LAW – INJUNCTIONS – Protection of child – Interim order made for the protection of the  child and the mother restraining the father from approaching them or communicating with them

APPLICANT: MS PILCHAR

RESPONDENT: MR BROWN

FILE NUMBER: NCC 836 of 2007

DATE DELIVERED: 18 March 2008

PLACE DELIVERED [IN CHAMBERS]: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: JUSTICE MULLANE

HEARING DATE: 10 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Predney, Fowler Predny

Solicitors

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Denise Clarke

Orders

1. The parties’ child … born … August 2003 is to reside with the mother and she has sole parental responsibility for the child.

2. Pending further order the child is not to spend time with or communicate with the father.

3. Pending further order for the personal protection of the child and the personal protection of the mother, the father is restrained from telephoning, stalking, harassing, or threatening the child or the mother or approaching within 50 metres of either of them or the mother’s residence.

4. The father has permission to relist these proceedings by request to the Registry Manager for the purpose of adducing evidence in relation to allegations of violence and other abusive behaviour by him and allegations of his abuse of illegal drugs.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 836 of 2007

MS PILCHAR

Applicant

And

MR BROWN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an undefended hearing of proceedings concerning the parties’ son (who is aged 4).  The child has resided with his mother since the parents separated in January 2007.  She has been his primary carer since his birth.

EVIDENCE

1. The evidence upon which the mother relies and the Court has relied in reaching its decision comprises:

   1)the mother’s Application commencing the proceedings filed 20 March 2007;

   2)the mother’s Amended Application filed 29 January 2008;

   3)Interim Orders of 25 May 2007;

   4)Interim orders of 25 July 2007;

   5)Interim Orders of 26 September 2007;

   6)the mother’s affidavit of 23 January 2008;

   7)the mother’s affidavit of 10 March 2008.

BACKGROUND

1. The father has a history of regular use of marijuana over a period of about 11 years since the parties commenced their relationship.  The evidence is that he has also for several years between 2000 and 2006 been a drug dealer. 

2. There is a history of violence and other abusive behaviour by the father towards the mother and other persons.  This has included violence towards the child and also threats and intimidation directed at the mother and the child.  There have been Apprehended Violence proceedings taken by the Police on 2 occasions for the purpose of protecting the mother from the behaviour of the father.

3. The evidence of the mother in her affidavit of January 2008 is that on some occasions when she has threatened to call the Police, the father has threatened to take the child away “and you will never see him again”.  Similarly, he has on occasions not been afraid of her threats to call the Police and told her, “I’ll tell them that you hit me first”.

4. The father inflicted a series of assaults on the mother on 20 January 2007 and as a result she left with the child and they took up residence in a refuge.  The Police subsequently charged the father with assault and issued an interim Apprehended Violence Order against him. 

5. The evidence of the mother includes evidence of the father swearing at her and the child, and put downs of her and the child.  It includes a long history of demands of the father for him to have the child in his care since the parties separated.  On occasions he has taken the child from her against her wishes and has attempted to do so, even when she was with her sister in a motor vehicle with the child.

6. He has threatened her in relation to the arrangements for him to have time with the child, “If you won’t sort things out I’ll take [the child] and you’ll know how it feels”, and, “I am having [the child] every weekend”, and, “You’re going to have to sign an agreement saying that I can have him every weekend”.

7. There have been a series of threats made by the father against the mother since these proceedings commenced, largely on the basis that if he did not get what he wanted, he would either take the child from her or take some other revenge.

8. When the mother commenced the proceedings in March 2007, she proposed that any time the child spends with his father would be conditional upon the father first completing an accredited anger management course and providing clear drug analysis reports for a period of at least 6 consecutive months.  But in May 2007, she agreed to interim orders that provided for the child to spend time with the father every second weekend from 10am Saturday to 4pm Sunday.  Those orders provided the change-overs to occur at McDonalds Restaurant at ….  On the first such occasion when the mother went there with her sister and the child there was a major incident where the father attacked the mother while she, her sister and the child were in the motor vehicle.

9. He pulled her hair and pulled her body back, pinning her head against the back of the driver’s seat.  He released the child from his seat belt and attempted to remove him from the car.  the child took refuge by hanging hold his aunt.  the child was extremely distressed, crying and screaming.  The incident continued for quite some time.  A bystander called the Police.  The child remained distressed, even when the incident ended and the father left the area. 

10. It appears that there was then no time spent by the child with his father until a further set of consent orders were made on 26 September 2007.  Those orders provided for the child to spend time with his father each week from 6pm Friday until 5pm Sunday, commencing on 28 September 2007, and also for a period from Christmas Day until 28 December and also any other times as the parent agree.

11. During that period the father has refused to tell the mother at times where he is taking the child and where he will be staying overnight.  He has refused to provide her with his mobile telephone number.  However, the evidence in the mother’s case does not include further violence and other abuse by the father since the interim orders of 26 September 2007. 

12. The mother filed an Amended Application on 29 January 2008 and in that application she no longer seeks an order for the father to attend an Anger Management Program, that the child spend time with him every second weekend from 6pm Friday to 5pm Sunday, and once he commences school for half of each school vacation. 

13. The September orders provided that unless the parties agreed otherwise, the arrangements for the child to spend time with his father would be implemented by the child being delivered by the mother to the father at the … Police Station and collected by her from the father at same place.  But the Orders the mother now proposes in her Application are for the time the child spends with his father be implemented by the father coming to the mother’s residence and collecting the child at the commencement of the period and returning the child to the mother’s residence at the end of such period. 

14. The mother’s most recent affidavit states that since 26 September 2007 contact has proceeded in accordance with the interim orders and says, “The father has also spent time with the child on a few extra occasions as agreed between us”.  She also states, “The father and I now have a reasonably amicable relationship and we are able to discuss issues pertaining to [the child].  From my recent observations of the father, I do not believe that he has been using drugs prior to collecting [the child] for contact visits.” 

15. The Independent Lawyer for the child is opposed to the child spending time with the father.

16. The evidence of abusive behaviour by the father to the mother and others is so serious as to indicate that it is contrary to the child’s interests to spend time with his father, because of the risk of the child being subjected to abusive behaviour by his father.  It seems that given the period of his cannabis use and the extent of his involvement with cannabis that he may have suffered an addiction or other mental health problem that has contributed to his behaviour problem.

17. The father also presents a risk to the child in that the father is likely to assault, threaten, harm or intimidate the mother or to remove the child from the mother’s care if arrangements for the child to spend time with the father are ordered.  If the child witnesses such behaviour it is likely to cause him distress, fear and insecurity.  Witnessing such behaviour towards his mother is likely to cause him emotional trauma.  It also presents for him a very dangerous behaviour model.

18. On the evidence the father represents a danger to the child and to the mother.  Abuse of the mother by the father will also undermine the mother’s parenting capacity and the quality of care she provides the child.

19. The father should have permission to re-list the proceedings if he wishes to seek to spend time with the child and offer evidence in relation the issues of his abusive behaviour and use of illegal drugs.

20. In the meantime, there should be interim Orders that the child spend no time with the father and have no communication with him and also an interim order for the protection of the child and the mother restraining the father from approaching them or communicating with them.

21. On the evidence it is clear that the child’s interests are best served if he resides with the mother and she has sole parental responsibility for him.

_________________________

The Hon Justice Mullane

Date:    18 March 2008