Purnell & Keene

Case [2024] FedCFamC1F 571

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…

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AGLC
Purnell & Keene [2024] FedCFamC1F 571
Case
[2024] FedCFamC1F 571
Decision Date

CaseChat Overview and Summary

The case of Purnell & Keene was heard by Berman J in the Federal Circuit and Family Court of Australia. The dispute centred around the living arrangements and contact with the children, X and Y, born in 2018 and 2019 respectively, following the separation of the parents, Mr Purnell and Ms Keene. The mother sought sole parental responsibility and no contact with the father, who was absent and undefended in the proceedings. The father had a history of aggressive behaviour, including multiple breaches of an Intervention Order, and his conduct during the proceedings was deemed disruptive and threatening.

The primary legal issue the court had to address was whether the children should live with the mother and have no contact with the father, given his history of family violence and non-compliance with court orders. The court needed to assess the risk to the children from the father's behaviour and consider the father's refusal to recognise the court's jurisdiction. Additionally, the court had to determine the appropriate orders to ensure the safety and well-being of the children.

The court found that the father's conduct constituted family violence and that the children had been exposed to this violence. The father's disruptive and threatening behaviour during the final hearing, along with his history of breaching court orders, indicated a high risk to the children if they were to have any contact with him. The court concluded that the father would not comply with any orders that required him to have contact with the children or the mother. Therefore, the court granted the mother's application for sole parental responsibility and ordered that the children live with her and have no contact with the father. The court also imposed several restraints on the father to prevent him from contacting the mother or the children, attending their educational or extracurricular activities, or publishing any information from the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 EVIDENCEThe 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 CONSIDERATIONSAre 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...