Purnell & Keene
[2024] FedCFamC1F 571
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Purnell & Keene [2024] FedCFamC1F 571
File number(s): ADC 1334 of 2023 Judgment of: BERMAN J Date of judgment: 29 August 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where the children live with the mother and spend no time with the father – Consideration of risk – Where the father considers the Court does not have jurisdiction over him – Consideration of whether the father would comply with orders – Where the father has continuously breached a final Intervention Order – Where the father’s behaviour constitutes family violence – Where the children have been exposed to family violence – Where the father’s behaviour during the final hearing was disruptive and threatening – Where a separate court room was set up to enable the proceedings to continue – Where the father refused to return – Matter proceeded on an undefended basis – Orders made for no time with the father. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60B, 60CC, 61C, 61CA, 61D, 102NB, 102QAC Cases cited: Amador & Amador (2009) FamCAFC 196
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Sawant & Karanth [2014] FamCAFC 235
Division: Division 1 First Instance Number of paragraphs: 119 Date of hearing: 12 August 2024 Place: Heard in Adelaide, delivered in Darwin Counsel for the Applicant: Litigant appeared self-represented Counsel for the Respondent: Ms Fuda Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd Counsel for the Independent Children's Lawyer: Mr McQuade Solicitor for the Independent Children's Lawyer: Ryder Family Law ORDERS
ADC 1334 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PURNELL
Applicant
AND: MS KEENE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.Ms Keene (“the mother”) shall have sole parental responsibility for X born in 2018 and Y born in 2019 (collectively “the children”).
2.The children shall live with the mother and spend no time with Mr Purnell (“the father”).
3.The father be restrained and an injunction granted restraining him from:
(a)Abusing, denigrating or criticising the mother or her family in the presence of or within hearing of the children or allowing any other person to do so;
(b)From removing the children from the State of South Australia without an order of this Honourable Court;
(c)Removing the children from the mother’s care or causing or allowing any other person to do so;
(d)Attending at or removing the children from any childcare, kindergarten, school or extra-curricular activity that they may be enrolled in from time to time or causing or allowing any other person to do so;
(e)Attending at the mother’s home or place of employment for any reason without the mother’s expressed written consent, or causing or allowing any other person to do so;
(f)Communicating with the mother directly or indirectly;
(g)Contacting the mother or children for any reason either directly or indirectly or causing or allowing any other person to do so, including having any items delivered to the children’s school, kindergarten, the mother’s home address or place of employment; and
(h)Publishing any information from these proceedings or any other issues or allegations raised in these proceedings on any form of social media or SMS text messaging.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Purnell (“the father”) and Ms Keene (“the mother”) are unable to reach agreement in respect of the ongoing and future parenting arrangements for X born in 2018 and Y born in 2019 (collectively “the children”).
The children currently reside with the mother and they have not spent any effective time with the father since 2022.
The father commenced proceedings by Initiating Application filed 27 March 2023 seeking orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the children including responsibility for their medical and educational needs;
(2)That the children spend time with each of the parties on a week about basis;
(3)That the children spend time with the father on special occasions including Christmas, Easter, birthdays and other holidays; and
(4)That each party be able to attend school and sporting events to which parents are normally invited to attend.
By Response to Final Orders filed 4 May 2023, the mother initially sought orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the children.
(2)That the children live with the mother.
(3)That the children spend time with the father as follows:
(a)Each alternate weekend from 8.30 am Saturday to Sunday at 5.00 pm; and
(b)Such further and other times as may be agreed between the parties.
(4)That handovers take place inside the Suburb B Police Station.
(5)That six months prior to the child X commencing primary school, the parties attend upon community-based mediation to make further time spending arrangements.
In addition, the mother also sought orders restraining the father from:
(a)Abusing, denigrating or criticising the mother or her family in the presence of or within the hearing of the children or allowing any other person to do so.
(b)Consuming any alcohol 24 hours prior to or during any time the children are in his care or bringing the children into contact with any other person consuming alcohol.
(c)From removing the children from the State of South Australia without an order of the Court.
(d)Attending the mother’s home or place of employment for any reason without the mother’s expressed written consent.
(e)Communicating with the mother directly or indirectly.
(f)That during any time when the children are in the father’s care, he does not handle any of his firearms, and they remain in the prescribed secure lockbox at all times.
(g)Publishing any information from these proceedings or any other issues or allegations raised in these proceedings on any form of social media or SMS text messaging.
The initial proposal of the mother was that subject to certain conditions and restraints, she considered that it was in the children’s best interest to maintain a relationship with the father.
The mother’s position changed and by Further Amended Response to Initiating Application filed 8 August 2024 wherein the mother sought orders for sole parental responsibility, that the children live with her and spend no time with the father either by way of direct contact or by him being able to communicate with them.
Proceedings were transferred to Division 1 of this Court on 5 October 2023. All interim applications were determined and by orders dated 27 November 2023, notations provided that the matter remained in the trial pool awaiting a final hearing date.
On 13 June 2024, orders were made listing the matter for a first day hearing and on 25 June 2024, trial direction orders were made that required the parties to file their respective trial affidavit material by 8 August 2024. On that occasion, the father indicated that it was his intention to remain as a self-represented litigant. The matter of s 102NA of the Act was again raised however, the father submitted that he did not seek, nor intend, to cross-examine the mother at the final hearing and there was no utility in making an order pursuant to s 102NA of the Act.
The mother complied with trial direction orders however the father did not.
The proceedings were listed for final hearing on 12 August 2024. The mother was represented by counsel, the father appeared as a self-represented litigant and the Court was assisted by counsel appearing for the Independent Children’s Lawyer (“ICL”).
At the commencement of the proceedings, the non-compliance by the father was raised and a decision was made that the matter proceed on an undefended basis. The father was advised that unless he indicated that he had a genuine intention to engage with the proceedings, his involvement would be limited to being able to cross-examine witnesses in the proceedings other than the mother and making final submissions as to how the evidence should be treated.
The mother alleges that the father perpetrated significant family violence by threatening and physically intimidating conduct. A final Intervention Order was granted in late 2023 which provided that the mother be a protected person.
As a result, the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prevented the father from being able to cross-examine the mother.
The father was not prepared to accept the jurisdiction of the Court and during his initial submissions, the mother’s counsel’s submissions and the opening remarks made, he repeatedly interrupted the proceedings.
The Court used its best endeavours to inform the father of his options and in particular reference was made to the decision of the Full Court of Re F: Litigants in Person Guidelines (2001) FLC 93-072.
The father, by his conduct and actions, continued to disrupt the proceedings and a decision was made that regard would be had to s 102NB of the Family Law Act 1975 (Cth) (“the Act”) to manage the proceedings by the father participating remotely from a different court room within the precincts of the Adelaide Registry.
As the Court was being adjourned to enable arrangements to be made to set up an alternate courtroom, the father directed the following remarks to me:
“You fuckin weak cunts, look at ya. Where are you going? Where are you going? You running away are ya? Ha ha ha ha”.
Following the necessary arrangements for a second court room to be set up, the father was called on multiple occasions but did not appear.
It is now a matter of record that following the adjournment of the proceedings to set up the second court room, the father attended the Registry and completed an affidavit filed 12 August 2024 in what might be considered an unusual format. The document is exhibit “1” in the proceedings.
The father referred to himself not as a “person” who was swearing or affirming the affidavit but rather as a “living man”.
For reasons that are not easily understood, the father did not want to acknowledge that his surname was “[Purnell]” but rather considered that he was part of a “trust” and that his name should be “[Mr Purnell] of the House [Purnell]”. There is no clear understanding of what is intended to be conveyed by the father although it appears that there is a different intention or understanding by the father that the “House of [Purnell]” is different to his surname. It is therefore an unfortunate albeit confusing construct.
The content of the father’s affidavit (exhibit “1”) is as follows:
Evidence
1. Notice of misprocess
2. Judge acting oppressively of when interested
3.The judge has left and abandoned the court and thus we are not sure if the decision was recorded on the record, the matter was dismissed and the children are to be returned to the father as soon as possible.
By: [Mr Purnell] of the House [Purnell] without prejudice. All reservations of Rights natural man protected under the Royal Crown And Common Law of England.
The Principle Beneficial Equitable Trust Title Holder
“GOD SAVE THE KING”
(As per original)
The affidavit was not sworn or affirmed by the father in the usual way but rather he affixed his thumb print dipped in red ink.
The matter proceeded in the absence of the father on an undefended basis.
BACKGROUND
The mother is currently 42 years of age and is employed as an entertainer. The father is 41 years of age and works in the automotive industry. The parties commenced a relationship in 2017 and separated in December 2019.
The mother contends that the relationship broke down due to her concern at the father’s excessive alcohol consumption, his threatening verbal abuse and his demeaning conduct towards her.
Following separation, the mother would supervise the father’s time with the children every one to two days for approximately one to two hours.
The mother initially did not seek a Child Support Assessment however, in circumstances where her financial position was precarious, the parties entered into a private agreement through the Child Support Agency with an assessment arising in 2021. The mother states that the father did not pay the Child Support as assessed but rather claimed that “he didn’t deal with the government”.
It seems that the parties reached an unhappy agreement wherein the father would care for the children at the mother’s home when she worked outside of normal childcare hours. In broad terms, the arrangement allowed for the father to spend time with the children three times per week from 4.00 pm to 7.00 pm on Mondays, 7.30 pm to 9.00 pm on Tuesdays and 8.45 am to 1.45 pm on Saturdays.
In late 2022 the father attended the mother’s home to spend time with the child, Y, for his birthday, as agreed between the parties. An argument ensued and the mother alleges that the father refused to leave her home when asked, clenched his fists and approached the mother whilst she was caring for Y and placed his hand on her. When the father released the mother, she telephoned the police and the father was charged with assault. The mother and the children were listed as protected persons pursuant to an Interim Intervention Order.
Both the charges and the Interim Intervention Order were subsequently withdrawn.
Thereafter, what remnant agreement and goodwill may have previously existed between the parties, was extinguished and the father no longer spent time with the children. It is likely that as a result of his frustration at the circumstances, he commenced attending the mother’s home without warning or advice.
The mother refused to engage with the father and on occasion the police were called.
In early 2023, an incident occurred which required the police to request that the father leave the mother’s premises.
Later in the same month, the father again attended the mother’s premises and when he was not able to gain access, he commenced banging on the windows and shouting at the mother demanding that she open the door.
The father’s aggression appears to thereafter escalate resulting in an incident also in early 2023 when the father parked his vehicle in front of the mother’s home and proceeded to undertake repairs on the vehicle spending a significant amount of time there. Again, the police were called who required the father to leave the vicinity.
Later in the same month, the police were again called to remove the father from the mother’s home.
The parties were unsuccessful in attempting to mediate their differences.
The mother annexes correspondence from the father dated 17 March 2023. The contents of the letter (annexure “A” to the mother’s trial affidavit) is uncontroversial in that it seeks to negotiate an arrangement with the mother in the absence of which the father foreshadows bringing proceedings. In response, the mother does not dismiss the father’s correspondence but rather seeks that the father attend a parenting course and a “Men’s Behavioural Change” group in the hope that it will enable the father to be more respectful in his engagement with the mother.
For reasons that are not readily apparent, the father forwarded a Tax Invoice to the mother’s solicitor, Ms C, in 2023 seeking a total sum of $5,280 comprising labour of $4,800 plus the GST component.
It appears that the father considered the conduct of the mother’s solicitor as keeping him away from his employment thereby justifying a claim for compensation.
In 2023 the Magistrates Court issued a further Intervention Order listing the mother as the protected person. The Intervention Order was issued in relation to an act of domestic violence and it is noted that there are grounds to reasonably suspect that the father will, without intervention, commit an act of abuse against the mother.
In response to communication from the mother’s solicitor, by email dated 12 June 2023, the father forwarded the following response:
Hi … With regards to this intervention order, I DO NOT CONSENT. I DO NOT UNDERSTAND. I DECLINE THE OFFER. If English is not your first language, and you do not understand, you may apply to the court for an interpreter, and they will appoint you one. I insist you tell your client to stop this nonsense immediately and come to mediation with me.
On 13 October 2023 orders were made that were designed to restore supervised time with the father upon him completing at least three sessions conducted pursuant to the Men’s Behavioural Change Program. It is now known that the father did not complete the required sessions and time spending with the children did not resume.
In addition, the father refused to sign the service agreement with the Children’s Contact Service and on application of the ICL, orders were made on 27 November 2023 discharging paragraphs 3 and 4 of orders made 12 July 2023 relating to the engagement of the parties with the Children’s Contact Service.
Despite the mother’s request that the father not contact her directly and notwithstanding the terms of the Intervention Order, it appears that he continued to do so.
The tenor of the father’s communication appeared to vacillate from genuine requests directed to third parties seeking to spend time with the children, to communication that was at times nonsensical and in any event, difficult to comprehend.
On 4 April 2024 at 7.13 am, the mother received the following communication from the father:
“The Unfit Mother”
You need to talk to me, I have been trying to contact you for some time now, regarding, our son’s, I pray they’re alright. A letter, or card, maybe a photo or video call, phone call, as youre not able to be adult, get your mum or dad or even your solicitor, reach out to a grown up just someone who is capable. As it’s clear that you are still an infant.
(As per original)
On the same day, the mother’s solicitor received the following correspondence from the father:
“G’Day […], I very much appreciate you reaching out, as I have been trying to see my son’s for an excruciating long time, as I’m sure you’re aware, I do not consent or joinder to any orders implied or stated by the court’s, past, present, or future, I waive no God given rights, and I waive all the benefits. Unless you have a trial date, mediation, with [the mother], time to see my son’s, DO NOT EVER contact me again.
Similarly, on 4 June 2024 the mother received correspondence from the father dated 27 May 2024 by registered mail in the following terms:
I have attempted to contact you to talk to you privately by every means possible and have given you more than adequate time to respond. You have failed to execute your duty and meet your obligations. With a heavy heart and regret, as a consequence, I hereby declare as of this day forth your position of trustee be vacated, you no longer represent me in any capacity, I speak for myself. In the beneficial interest of our sons, I reclaim my property/chattel held against my will, after demands being made for its return, I will make arrangements to hold and care for our sons.
Written on the back of the letter “[Mr D] of the Family Name [Purnell] 27/5/2024” and “[Ms E] of the family [Purnell] 27/5/2024”.
The correspondence referred to the children’s paternal grandparents.
The father then appears to have resorted to having takeaway delivered to the mother’s home with messages from him handwritten on the takeaway.
The mother reported what she considered to be breaches of the Intervention Order made in 2023 occurring in early 2024 and mid-2024. Trial direction orders were made in mid-2024 and in the following month the father did not appear in the Magistrates Court in relation to the charges laid that he breached the Intervention Order.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(1)Further Amended Response to Initiating Application filed 8 August 2024.
(2)Affidavit of mother filed 8 August 2024 (“the mother’s trial affidavit”).
(3)Affidavit of Ms F filed 8 August 2024.
The father did not file any documents and did not seek to rely upon previous affidavits or documents filed.
The father did file a Case Outline document for the final hearing on 21 June 2024 seeking a claim of compensation.
The ICL relies upon the following documents:
(1)Further Amended Response to Initiating Application filed 8 August 2024.
(2)The mother’s trial affidavit.
(3)Affidavit of Ms F filed 8 August 2024.
(4)Case Outline Document filed 11 August 2024.
(5)Child Impact Report dated 12 September 2023.
THE EVIDENCE
The mother
The mother relied upon her trial affidavit. The ICL did not seek for the mother be cross‑examined and I accept that the mother’s evidence, as presented, should be given substantial weight. There is significant corroboration both from correspondence authored by the father and sent to the mother, her solicitor and third parties that if required, provides appropriate corroboration.
I accept that the father attended the mother’s home on a regular basis without her consent and invitation often requiring the police to remove him.
I accept the mother’s evidence that she found interaction with the father generally and his correspondence in particular to be threatening and causing fear.
In that regard, the mother relies upon the protection of the final Intervention Order dated 2023.
Court Child Expert
Mr G (“the report writer”) prepared a Child Impact Report dated 12 September 2023 (“the report”).
The report should not be considered as comprehensive given the purpose of Child Impact Report prepared pursuant to s 62G(2) of the Act is to provide preliminary expert advice that will assist the parties to mediate their dispute. The report is however of assistance in seeking to understand the unfortunate transition of the father from expressing a genuine affection for the children and respect for the mother to his current presentation of not being prepared to recognise the jurisdiction of the Court, refusing to engage as a party in the proceedings and resorting to language and behaviour that at best is reckless as to the likelihood that it would engender fear in the mother.
The report writer recorded that at the time of interview the father acknowledged that the mother was a good parent but expressed his frustration at the Court system that he considered was designed for the ulterior purpose of keeping everyone in a job rather than giving proper consideration to the best interests of the children.
The mother acknowledged that the children love the father and that they wish to see him. At the time, the mother was supportive of the children spending time with the father providing that it could be achieved in a way that was safe for her and the children. The mother acknowledged that although the children love the father, they are fearful of his unpredictable and aggressive outbursts.
The father did not accept that the mother was fearful of him and described her in the following terms:
13.When discussing [the mother]’s work […], [the father] said that it is not a real job, that it is more like a hobby, he described her work as ridiculous. Throughout the interview, [the father] referred to [the mother] as ‘honey’ when giving his account of their discussions with each other. He said on numerous occasions that her family (particularly [the mother]’s mother and sister) cause many of the problems between him and [the mother] regarding time spending.
The report writer considered that the children would be potentially at risk if they would spend unsupervised time with the father noting that he refused to spend time with the children if it was supervised and in particular at a Children’s Contact Service.
The report writer was pessimistic as to the parties ability to negotiate a resolution in circumstances where the father did not accept that the children were likely to be affected by the conflict and his verbal abuse.
The father
The father did not comply with trial direction orders and did not present any evidence that was directed to the orders that he sought and/or responsive to the matters raised by the mother.
The father’s correspondence forwarded to the mother, her solicitor, third parties and to the Court is nonsensical, vexatious and threatening.
It seems that the father is not prepared to accept that the Court, and law enforcement generally, is legitimate. His correspondence and presentation in court is such that he considers he is an individual common law identity acting on behalf of the “Principle Beneficial Equitable Names Estate Trust Title Holder, (Not the Trustee) for [MR PURNELL]” and not subject to the authority of government institutions.
There is an emphasis on the father seeking compensation in the order of millions of dollars from the Court, the mother, her solicitors and the government.
Moreover, there is a belief by the father that any document where a person’s name or other detail is in capital letters apparently is indicative of government control. As a result, the father appears unprepared to even acknowledge that his surname is “Purnell” notwithstanding that the Initiating Application uses the surname “Purnell” and at least initially, correspondence forwarded by the father referenced his surname. The use of the prefix “Purnell” apparently is utilised to avoid any finding that the father has submitted to the jurisdiction. Again, it is of some note that the father filed the initiating proceedings and engaged in reasonable communication.
A further curious aspect is the insistence by the father that he complete various documents with a thumb print pressed in red ink to avoid the possibility of inadvertent submission to false government.
The father’s more recent documents, together with his submissions made in Court is that he considers the children are his “property/ chattel” for which he “demands” an immediate return.
The conduct of the father does little to dispel the mother’s concerns and heightens the necessary level of vigilance to protect the children.
STATUTORY FRAMEWORK
I consider it necessary to adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and to have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interest.
Subject to the parties seeking a consent order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in ss 60CC(2) and (2A) which places emphasis on a history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or harm.
A consideration of the question of safety is intended to emphasise the extent to which the future may be informed by past history.
The focus of the relevant provisions of the Act is to ensure that the best interests of the children, as opposed to the parties, is the preeminent consideration.
I consider that whilst the Act does not make specific mention of the importance of the children having a meaningful relationship, it is likely that the best interests of a child will be served if a relationship with a party or parent is maintained providing it is in all the circumstances safe to do so and will be of an advantage to the child.
The father seeks orders for equal time however, the matter proceeded on an undefended basis and to the extent that there is any evidence presented in support of the orders sought by the father, the evidence of the mother is to be preferred.
The mother seeks that the children spend no time with the father and that he not be permitted to come into contact with the children by attending curricular or extra-curricular activities. It is unfortunate that the father was not able to place the interests of the children before his own somewhat anarchistic view of the world, government and its institutions in particular, this Court.
PARENTING CONSIDERATIONS
Are the children at risk
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N and S and the Separate Representative (1996) FLC 92-655 and adopted the following list of enquiries with respect to risk assessment and analysis:-
73. …
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
The mother alleges that the relationship with the father was marred by ongoing family violence.
Section 4AB of the Act came into effect on 7 June 2012 and significantly broadened the definition of family violence.
For the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence.
Examples of situations that may constitute a child being exposed to family violence pursuant to s 4AB(4) of the Act include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The definition includes examples of particular behaviour but is not intended to be exhaustive. It is noted that there is no requirement in the definition that a victim of family violence experiences fear. The definition has both subjective and objective elements.
In Amador & Amador (2009) FamCAFC 196 the Court held:
79....Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission...
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations which may provide corroborative evidence of some fact to have the evidence of assault accepted.
The issue of family violence and findings in regard thereto was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the Court said at [37]:
In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “… unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her …”.
Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 69, a case involving serious allegations of a different type, namely, child sexual abuse, but applicable to family violence.
I have found that the mother is a reliable witness. The father did not present evidence and made a decision not to remain in the Court precincts nor to engage in the proceedings.
Prior to the determination that the proceedings should be conducted utilising two separate court rooms, the father’s conduct was disruptive and at times, threatening.
It is also of significance that the mother is a protected person pursuant to the terms of a final Intervention Order dated 2023.
Wishes of the children
The mother was prepared to candidly admit that the children have previously expressed a wish to see and spend time with the father. The mother does not deny that the children love their father and that they are uncertain as to why they do not see him.
The wishes of the children should be given significant weight tempered by their inability to consider the advantages of spending time with the father which are significantly offset by the disadvantage of the risk that the father proposes to the mother in particular and potentially to the children.
The capacity of each person who has or is proposed to have a parental responsibility for the child to provide for the child’s needs
The evidence readily supports a finding that the needs of the children are appropriately supported in the household of the mother. There is no evidence that would assist me to make a finding that the children’s needs could be well catered by the father.
The father does not seem able to understand that a significant difficulty has been created by his steadfast view that the government and its institutions, including the Court, are in some way illegitimate and he is therefore not subject to any order made.
The reasonable extrapolation of the father’s belief structure is that he is not obliged to comply with court orders. As such, it is difficult to see how an arrangement whereby orders are made that provide for the children to spend time with the father would enable the mother to have some reasonable certainty that the children will be returned in accordance with orders.
It must be said that the father has created his own difficulties. If the father had completed the three sessions at a Men’s Behavioural Change program and complied with the orders initially recommencing his time with the children supervised at a Children’s Contact Service and had desisted from sending offensive, vexatious and threatening communication to the mother, her solicitor, third parties and the Court, a different outcome involving the children spending time with the father was realistic.
I have accepted that the mother is fearful of the father and that he lacks insight as to the impact upon the children of witnessing his aggressive interaction with her. I do not accept that the children were too young to have been adversely impacted by their observations of the father’s conduct and aggression.
The interest of the children must be the paramount consideration. The father has been given ample opportunity to demonstrate that he has sufficient insight such that if time resumed neither the children nor the mother would be at risk or be further subjected to family violence. As such, there is no pathway that would enable me to make orders either in terms of the father’s Initiating Application or some other more modest order that is open on the evidence.
PARENTAL RESPONSIBILITY
Effective from 6 May 2024, s 61DA of the Act, which had previously provided for the presumption of equal shared parental responsibility when making parenting orders, was repealed.
A consideration of s 61C, s 61CA and s 61D of the Act is such that any change or alteration to the parental responsibility that the parties have pursuant to s 61C of the Act is to be determined by what is in the best interests of the children.
The parties have no current relationship. I accept that the mother remains in fear of the father supported by nonsensical aggressive communication from him.
There is no circumstance where the mother could reasonably expect to discuss matters pertaining to the children with the father particularly given that there is a final Intervention Order in place.
The parties are not able to communicate with each other at any reasonable level and as such I consider that the mother should have sole parental responsibility for the children.
I propose to make orders in terms of the orders sought by the mother in her Further Amended Response to Initiating Application.
In doing so, I have given careful consideration to the restraint and injunctions sought by the mother and in circumstances where the father disavows any respect for court orders, the injunctions sought, whilst wide ranging, should be made on a final basis.
I reject the harm proceeding order sought by the mother pursuant to s 102QAC(1)(a) of the Act. Evidence was not presented in support of the order that would satisfy me that further proceedings would result in inevitable harm or aggression.
As presented by the ICL, there is a possible pathway for the father that might result in the mother regaining some confidence that the father has gained insight into his threatening behaviour and complete rejection of the notion that he is not bound by court orders.
The mother seeks the protection of wide-ranging injunctions in circumstances where the father presents no evidence disputing the threatening behaviour as alleged by the mother. In addition, there is no confidence that the father will respect either the mother’s clear indication that she is fearful of the father and does not wish to engage with him or his preparedness to comply with court orders. The father’s presentation is unequivocal. He does not accept that he is bound by the determination of the Court or orders made.
The basis of the injunctions sought is for the personal protection of the mother and the children.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 29 August 2024
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