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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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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...