R and P
[2002] FMCAfam 242
•7 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & P | [2002] FMCAfam 242 |
| FAMILY LAW – Contact – supervised contact – residence order – conduct of the parents – best interests of the child – issues of family violence – death of parent with whom child resides – Family Law Act 1975, ss.60B, 65K, 68F, 68K. Family Law Act 1975, ss.60B, 65K, 68F, 68K In the Marriage of Horman (1976) 5 Fam LR 796 |
| Applicant: | D K R |
| Respondent: | D E P |
| File No: | NCM2844 of 2001 |
| Delivered on: | 7 August 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 2 November 2001 27 & 28 February 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilkinson |
| Solicitors for the Applicant: | Mr Scally Legal Aid Commission of NSW DX 7911 Newcastle |
| Counsel for the Respondent: | Mr Bateman |
| Solicitors for the Respondent: | Mr Predny Fowler Predny, Solicitors DX 7637 T |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCM2844 of 2001
| D K R |
Applicant
And
| D E P |
Respondent
REASONS FOR JUDGMENT
This is an application by the father for contact with the child of his relationship with the Respondent mother, a little girl called D P, who was born on 4th November 2000. The father, in his application filed at T Local Court on 11th January 2001, sought orders that he should have unsupervised contact with the child for two hours at a time on four days each week. He also sought orders that he have contact for four hours at a time on one day of the weekend. In her response, filed on 24th July 2001, the mother sought that the contact application should be dismissed. At the final hearing, it was submitted by Mr Bateman, counsel for the mother, that there should be a residence order in favour of the mother, but that, for the time being, there should be no order for contact. He said “The instant question is whether this child will benefit from contact with the father, and on the mother’s submission this must be answered no.”[i] Against this, Mr Wilkinson, counsel for the father, referred to the decision in In the Marriage of Horman (1976) 5 Fam LR 796 (also reported in (1976) FLC 90-024), where it was said that it would be a “rare and compelling case” which would require the court to refuse all contact. I indicated to counsel on the day of the hearing that I had not seen anything in the evidence that would indicate that this was such a rare and compelling case that I would be persuaded that there should be no contact whatsoever.[ii] The residence order in favour of the mother was unopposed and was made that same day.
Background
In this case, the father was born on 2nd July 1976. He has lived in a long-term de facto relationship with M R for over22 years. There are three children from that relationship, aged 19, 16 and 1 years at the time of the hearing. The father also had a child by an earlier relationship, a boy called D, who lived with him and his de facto wife from the age of three years until he left home. D is now estranged from his father.
The mother was born on 20th December 1962. She had six children from three prior partners, aged from 20 years down to 3 years at the time of the hearing. Her two eldest children, J and S (aged 21 and 18 years), are the children of her marriage to G B, whom she married in 1980. They were divorced in 1989. Her next three children, aged 11, 10 and 8 years), are from her relationship with one W D. The children reside with her and have supervised contact with their father. The mother had a relationship with a J W, which led to the birth of her son J, aged 3 years. The mother entered into a relationship with one D N in December 2000, which continued up to the hearing.
The child D was born as a result of an affair between the father and the mother, which commenced in early 1999. They were introduced by J W, in August 1998. The mother became pregnant in March 2000. The parties ceased their relationship about June or July of that year.
After the child D was born in November 2000, the mother went on to form a relationship with Mr N. On 23rd January 2001, the mother obtained an Apprehended Violence Order against the father as a result of what she said was a campaign of harassment directed and against her and Mr N, and she refused to allow the father to have any contact with the child.
After a consideration of the evidence, orders were made on 19th April 2002, providing that the child should reside with the mother and that the father should have supervised contact with the child for two hours at a time, at a frequency of once a week. The contact was to take place at the R Contact Centre, which is run by Relationships Australia. The father was also ordered not to approach the mother or to go within 100 metres of her residence. The reasons for the decision were to be given at a later date, and time for lodging any appeal was not to run until the publication of those reasons.
Unfortunately, before the reasons for judgment were published, the mother died as a result of a motor vehicle accident. The proceedings had already been completed, as a parenting order had been made, but it is still necessary to indicate the reasons for the decision, as no doubt other litigation will flow in the near future.
Death of the parent with whom a child lives
Where a residence order has been made in favour of one party, and that parent subsequently dies whilst the child is still a child, the provisions of section 65K of the Family Law Act apply. The section says:
“65K (1) This section applies if:
(a)a parenting order that is or includes a residence order is in force determining that a child is to live with one of the child’s parents; and
(b)that parent dies; and
(c)the parenting order does not provide for what is to happen on that parent’s death.
(2)The surviving parent cannot require the child to live with him or her.
(3)The surviving parent, or another person (subject to section 65C), may apply for the making of a residence order in relation to the child.
(4)In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings.”
In this case, the Orders made by this Court on 19th April 2002 provided that the child D J L P born 4th November 2000 was to reside with the Respondent mother, who was to be responsible for the long term and day to day care, welfare and development of the child. It follows, then, that the father cannot require the child to live with him unless he brings an application for residence pursuant to section 65C and the Court makes a residence order.
Evidence
The Applicant gave evidence and was cross-examined at great length. The Applicant’s son, D M R, gave evidence by affidavit and was cross-examined. M R, the Applicant’s de facto wife, gave evidence by means of two affidavits, sworn or affirmed on the 6th and 24th July 2001. She was also cross-examined in some detail.
The Respondent mother gave evidence by affidavit and was cross-examined. Her current partner, D N gave evidence in support of her case. His evidence completed the second day of the hearing.
On the third and final day of the hearing, Ms S M A gave evidence, initially by video-link and, later that day, by telephone. She resides in another State. She is the mother of D S A, whose father is the Applicant. There was a technical problem with the video-link at one stage, so another witness was interposed, Ms S J P, who is the daughter of the Respondent by G B. She is living in a de facto relationship with D A. D A also gave evidence by affidavit and was cross-examined. Dr Cotton, the writer of the Family Report, was cross-examined by Mr Bateman for the mother. The father’s counsel, Mr Wilkinson, informed the Court that he did not wish to cross-examine Dr. Cotton.
The father gave brief oral evidence in reply, about an incident that had been described in Ms S P’ evidence. He was subjected to cross-examination by Mr Bateman.
Due to the untimely death of the Respondent mother, and the result it has had on the circumstances, it is no longer necessary or useful to carry out an in-depth analysis of the evidence of all the parties. It emerged that the father had had a relationship with S A, which led to the birth of the child D. The father had spent some time in prison for offences of dishonesty, and his explanations as to why he has used two different names as well as his original name are unconvincing. His relationship with Ms A had come to an end, and there are differing accounts as to how the child D came into his care and control at the age of three. He says that the child was voluntarily handed over to him by Ms A when they were in D, and that he undertook the child’s upbringing because Ms A did not wish to. When it was put to him that he deprived D of seeing his mother from the age of 3 until he met her when he was twenty, he replied “That was his wish.”[iii] When challenged about the child expressing such a wish at the age of three, the father maintained his answer – “Q. At age 3? A. Yes.”[iv]
Ms A gave a very different account. She asked not to have to make her address public, or even to identify the particular State of Australia in which she now resides. She described the father as “very controlling and manipulative and a selfish person”[v] and said “He just had a way of making you do what he wanted you to do.”
Not long after that, the video-link went down, but the witness later resumed her evidence by telephone, which worked very clearly and well. Ms A said that the father had harassed and stalked her. She vehemently denied that the NT Department of Community Services arranged for the father, whom she knew as D G, to have custody of the child, saying:
“He held me at gun point and kidnapped my son…And he – he said he had a gun, he held it at my side and led me to the police station…I never told them (the police), he held the gun at my side and he said that if I said anything out of character say, that he would kill me. I tried to make a facial suggestion.”[vi]
Ms A went on to deny that she had not been interested in maintaining contact with her son, saying that she had hired a private detective to try to locate the child, but without success. She believed this was due to the fact that the father had changed his name. She had later been reunited with her son.
The father admitted that he had changed his name from D G in 1980 and that he did not tell Ms A of that fact. He said that she knew where his family lived.
The father’s account of his relationship with the mother was that it was she who was the motivating force[vii]. She would drive to his workplace so that they could have sex during his lunch break[viii]. He denied later harassing the mother although he admitted that an Apprehended Violence Order was made by the T Local Court on 23rd January 2001. He also admitted that he had been charged with a breach of that order.[ix] The father also denied sending a number of text messages to the mother, although he admitted that they came from his mobile telephone.
The Applicant’s son, D M R, swore or affirmed an affidavit on 6th July 2001. He was born on 1st May 1982, so he was 19 years and 10 months old when he gave evidence on 27th February 2002. His evidence was to the fact that he is a university student who lives at home with his father, mother, younger brother and sister. He supported his father’s application for contact with his half sister, D , stating that he, too, wished to have a relationship with her. He spoke approvingly of his father as a “hands on” father, whom he had never seen to be violent to anyone.
In oral evidence, D R agreed that his half brother D had lived with his family for a period of time and that he was aware that D was not his mother’s natural son. He was about 9 or 10 years old when D ceased living with them. He admitted that he was aware of an incident between his father and a neighbour that led to his father being charged. He was aware that his father was convicted of assaulting the neighbour.
The father’s de facto wife, M R gave evidence. In her affidavit of 6th July, she deposed to her support for the father’s application. She referred to a confrontation between herself and the father in May 1999 when she found out about his affair with the Respondent. She later found out about the child. She deposed to ongoing harassment by the Respondent and people on her behalf. In her affidavit of 24th July 2001 she denied allegations by the Respondent of inappropriate sexual behaviour by the father.
Under cross-examination by Mr Bateman of counsel, she denied that the Applicant had shoulder-charged the Respondent at T Local Court. She described the young boy D living with them. When the child asked about his natural mother, she said that she had referred him to his father. She was surprisingly non-committal about the situation where the child had no contact with his natural mother for years:
“Q. It is a fairly dreadful thing for a child to miss out on knowing his mother for that period of time. From aged 2 until late teens, isn’t it?
I don’t know.
Q. No thoughts about that?
A. I’m sorry, I always took the responsibility of being his mother.
Q. Yes, but the question I put to you?
A. Yes.
Q. Is that it is a fairly dreadful thing for young D to have missed out on knowing his mother for the best part of his formative years?
A. I can’t – can’t form an opinion there.”[x]
Ms R said that she did not think the child D would be better off without being in the mother’s household, or that the child would be better off in her household.[xi] She said that she had read the recommendation in the Family Report that she should be included in the orders for contact, and that she was willing to be, essentially, a surrogate mother whilst the child was in her home.
The Respondent mother’s evidence was that she was opposed to the father having contact with the child, but she would comply with the situation if that were what the Court ordered. She would be frightened, she said, that the father would “abscond with her or harm her.”[xii] She denied that she had instigated the sexual relationship with the father, in particular that she had performed oral sex on him within five minutes of being alone in a car with him. She agreed that there were times when the father would call at her home and have sexual intercourse with her every morning, but not for very long, and it was usually only once or twice a week. She denied also going to the Applicant’s workplace every lunchtime. She agreed that she was withholding the child D from the Applicant “at the moment”[xiii] because of the Applicant’s being abusive and because she was scared “that he’ll do to D what he done to D”.[xiv]
The Respondent said that she was frightened of the Applicant because he had held a knife to her throat and had started stalking her 12 year old daughter:
“He was stalking her on the way to school, following her in the car, had the car parked at a friend’s place once and was yelling out names to her, calling her a tart and tell your mother that she’s nothing but a tart.”[xv]
The Respondent also described an incident that caused her concern, where she said that the Applicant had tried to take her granddaughter B out the child’s back yard. B is the daughter of her daughter, S.
The Respondent also described a number of incidents of harassment by the Applicant. In cross-examination, she said that she had been to the police about certain incidents.
The Respondent said that the Applicant had been the one to instigate the sexual relationship between them. He was forceful, she said. He would call at her home and seek sex from her about twice a week. She described his inappropriate sexual behaviour, including masturbating in public places, such as sitting in his car in a car park. She went on to describe incidents of violence. She said she did not know whether she had made numerous telephone calls to the Applicant in October, November and December 2000, despite having terminated the relationship with the Applicant in the middle of that year.
The Respondent’s current partner, D N, gave evidence. He described an incident where the Applicant had turned up at the Respondent’s house and held a knife to her throat. When asked what harm he feared the Applicant may do to the child D , he said:
“Absolutely anything is possible. He is just – what I’ve seen of him is very dangerous…Well holding a knife to D’s (the Respondent’s) throat, burnt my car, drive down the street you’re always getting gun gestures and all that sort of stuff”.[xvi]
Mr N said in cross-examination that the Applicant had threatened the Respondent in his presence, by saying “You’d better not be sleeping with him or anyone else for that matter or I’ll cut your throat”. It was then, he said, that the Applicant produced a knife and held it at the Respondent’s throat. He also said that his car was set on fire, and whilst he did not actually see the Applicant light the match,
“I seen him in the yard as soon as it was lit.”[xvii]Mr N also claimed that he found that the tyres on the Respondent’s car had been slashed, a few minutes after he saw the Applicant coming out of the lane that runs behind the Respondent’s house.
On 28th February 2002, the Respondent’s daughter, S J P gave evidence. She too sought not to have to disclose her address, saying “Because I’m scared of D (the Applicant), I don’t want him knowing where I live.”[xviii]
Her evidence was to the effect that the Applicant had tried to abduct her daughter from the yard of her home. She had sought an Apprehended Violence Order against the Applicant, but it was not granted. Ms P also claimed that, on a prior occasion, the Applicant had offered her money for sex. The witness gave evidence that she was in a de facto relationship with D A, the Applicant’s son by his relationship with S A.
D S A gave evidence. He said that he had changed his name to A about twelve months prior to the hearing. He also did not wish to disclose his residential address, giving as his reasons “Fear for my family and my own safety.”[xix] When pressed, he said that he feared the Applicant.
Mr A gave evidence that when he was a child living with the Applicant, he was at times beaten with a belt and hit with a hose. On one occasion, he said, his father threw a house brick at him. He admitted that the other siblings were not treated in this way. Mr A also gave evidence that his father had had a number of woman friends, with whom he boasted of having sexual relations. On one occasion, when he was 16 years of age, his father introduced him to a woman aged about 30, and encouraged him to have sex with her. He actually went on to live with this woman for about six months.
The Family Report
A Family Report was prepared for the purpose of these proceedings by Dr Robyn Cotton, pursuant to Section 62G of the Family Law Act. The Report was completed on 8th October 2001. Dr Cotton was cross-examined on 28th February 2002.
For the purposes of the Report, Dr Cotton interviewed not only the Applicant and the Respondent, but also M R, D N, and the children O, H and D R. She did not interview S J P or D A.
Dr Cotton, it should be said, formed a very poor view of the Respondent. She commented on the fact that she had seven children by four different fathers, none of whom had regular or sustained contact with their respective fathers. In her summary, Dr Cotton dismissed the Respondent with these words:
“33. Ms P seems oblivious to the possible long-term emotional consequences for children who do not develop a relationship with a non-resident parent. In fact, any reference to, or recognition of, an emotional dimension to life, did not seem to occur to Ms P.
34. Ms P’ thinking appears to be almost totally self-absorbed and egocentric with little thought about the emotional lives of her children. Her relationships appear to be short-lived, superficial and shallow, and probably little more than vehicles to satisfy mutual sexual needs without any regard for the possibility of developing a richer, deeper emotional life.”[xx]
By comparison, in her summary of the Applicant, Dr Cotton chose not to describe him in terms as harsh as those she had applied to the Respondent:
“64. Mr R presented as a person who had a difficult life in his formative years and who had a past history of various criminal offences. Mr R also presented as a hardworking man who has been committed to raising a family.
65. Mr R also took the opportunity to engage in sexual activity outside his primary relationship and appears to have become quite besotted with Ms P. However, he also manifested a degree of consideration to his long-term partner and their children, and was only prepared to move in with Ms P taking minimal personal possessions with him. He was not prepared to cause them any financial hardship.
66. Mr R professed shock and surprise at becoming a father again (to D ). Now that he has adjusted to the idea of having another daughter, he is keen to develop and maintain a continuing relationship with her.”[xxi]
Ms M R impressed the Welfare Officer even more. Dr Cotton described her as “a remarkable, sincere and compassionate person…a committed mother…the sort of person who puts the needs and feelings of children before her own. There is no doubt that D would be perfectly safe in her care.”[xxii]
Dr Cotton recommended that the father should have regular contact with the child. She suggested that Ms M R should be included in the orders, not for supervision reasons, but rather for the needs of a very young child to be met by a surrogate mother.[xxiii] Dr Cotton formed the view that the Respondent appeared to be holding a grudge against the Applicant for not terminating his relationship with his de facto and evicting her and the family so that she could live with him in his house. She appeared to accept the assertions that the Applicant was not in any way violent, which she says was “confirmed independently by his three children”.[xxiv]
In cross-examination by Mr Bateman, for the Respondent, Dr Cotton stated that she was not sure whether she was aware that the Respondent in fact owned her own home, nor was she aware that the Respondent’s home was a far larger home than that of the Applicant. She was aware that the Respondent was fearful of the Applicant’s violence, and of the fact that he may seek to decamp with the child. Dr Cotton said she was not aware of the alleged attempt by the father to abduct the child DB, but said “Any person who tries to abduct a child, again, it’s unacceptable in the extreme.”[xxv]
Principles to be applied
Section 60B of the Family Law Act, 1975, sets out the object of Part VII of the act, which deals with applications relating to children. Section 60B(1) says that:
“[Object of Part] The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Subsection 60B(2) sets out the principles underlying the object in section 60B(1).
It is quite clear from section 65E of the Act that, “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” In the decision of M and M, reported in (1988) 166 CLR 69, the High Court of Australia said:
“The ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”[xxvi]
Section 68F(2) sets out the matters which the Court must consider when deciding what is in the child’s best interest. Those matters were considered by the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995 (1997) FLC 92-755. The Court held:
“In proceedings under Part VII relating to parenting orders (which include relocation cases), the best interests of the particular child in that case remains the paramount consideration (s 65E). In that process the Court must consider the matters set out in s 68F to the extent that they are relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case and is a discretionary exercise by the trial Judge.”[xxvii]
The Court must consider all of the matters in Section 68F, although not all of them will be relevant in every case.
Section 68F(2)(a) – any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
The child was born on 4th November 2000. At the time of the hearing she was aged 15 months. She was, and is, too young for her wishes to be given any weight, even if ascertainable.
Section 68F(2)(b) – the nature of the relationship of the child with each of the child’s parents and with other persons;
The child has resided with her mother since she was born. She had no contact with her father from the date of her birth to the date of the hearing.
Section 68F(2)(c) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
ii)either of his or her parents; or
iii)any other child, or other person, with whom he or she has been living;
The child had been living with her mother and had had no contact with her father. The father conceded that she should continue to reside with the mother. The introduction of contact with the father would have an effect on the child, and contact would need to be introduced gradually.
Section 68F(2)(d) - the practical difficulty and expenses of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties did not live so far apart that there would be any difficulty in regular contact. The evidence was that the mother lived at M and the father lived at B B, a distance of about three to four kilometres.
Section 68F(2)(e) – the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
There was no issue raised about the capacity of either parent to provide for the child’s physical needs. Dr Cotton was critical of the mother’s capacity to provide for the child’s emotional needs. In my view, the father’s actions in taking no steps to permit the child D to have any contact with his natural mother does not show him in a good light. His explanation that the denial of contact was the wish of the child at the age of three I found disingenuous in the extreme. The inability of M R to see that there was any problem in this area was a matter that did not reflect well on her parenting capacity, either, and hardly earned her the “rave review” she received in the Family Report.
Section 68F(2)(f) – the child’s maturity, sex and background;
As mentioned earlier, the child D was born on 4th November 2000. The fact that she is a little girl was a cause of some concern to the Respondent, as she mentioned an alleged complaint about inappropriate behaviour by the Applicant as regards his own daughter, O. Ms M R denied any such activity.
Section 68F(2)(g) – the need to protect the child from physical or psychological harm caused, or that may be caused, by:
iv)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
v)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
There is considerable evidence about the Applicant’s violent behaviour. The mother obtained an Apprehended Violence Order against the father. He was charged with breaching that order. The mother alleges, as does Mr N, that the father has been threatening and violent, by placing a knife to the mother’s throat and causing damage and destruction to their motor cars. S J P and D A allege that they are afraid of the Applicant, and claim that he attempted to abduct the child DB. The mother alleges the father stalked and harassed her twelve-year-old daughter. There is evidence that the father assaulted a neighbour, and was placed upon a good behaviour bond. S A, although living in another State, claimed to be sufficiently afraid of the Applicant that she did not wish to disclose her address. There is sufficient evidence for the Court to form the view that the father has, at the very least, a tendency towards violence and intimidation.
Section 68F(2)(h) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is noteworthy that the mother had seven children by four different fathers and, at the time of hearing, not one of those children was having frequent, unrestricted contact with his or her father. This may be a reflection on the poor quality of men whom the mother chose to father her children, but it is certainly a matter for concern.
By comparison, the father sought a regular contact relationship with the child. His son D gave evidence of his positive aspects as a father, but his son D A presented a different, darker, picture. The father’s actions in not permitting the son D to have a relationship with his natural mother do not show him in a good light as far as accepting the responsibility of parenthood is concerned.
Section 68F(2)(i – any family violence involving the child or a member of the child’s family;
This should be dealt with at the same time as the consideration of
s.68F(2)(j) – any family violence order that applies to the child or a member of the child’s family;
The Local Court of NSW at T made an Apprehended Violence Order against the Applicant on 23rd January 2001. The Respondent was the protected person. That order alone is sufficient for the Court to look at arrangements for the parties not to come into contact. There is also enough evidence of ongoing threats and harassment by the Applicant to justify the Court in not adopting the Family Report’s recommendations about contact.
Section 68F(2)(k) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Events have overtaken this consideration, in that the mother’s untimely death may now lead to further litigation.
There are no other facts or circumstances that appear to be relevant.[xxviii]
Section 68F(3) considerations
Section 68F(3) of the Family Law Act is relevant here, to the extent that the mother sought an order that the child should reside with her. At the hearings, after the evidence was completed and submissions had been taken, counsel for the mother sought that the residence order should be made there and then. Counsel for the father, Mr Wilkinson, agreed that such an order was not opposed.[xxix] section 68F(3) provides as follows:
“[Consent orders] If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2)”.
As far as a residence order is concerned the relevant factors here are those set out in subsection (2)(b) and (f). The child was born on 4th November 2000, so she was still only 15 months old at the date of the final hearing, and she had had no contact with her father at all. Those two factors pointed to a residence order in favour of the mother as being appropriate in the circumstances.
Section 68K – Court to consider risk of family violence
In this matter, I am mindful of the fact that an Apprehended Violence Order was made on 23rd January 2001, in force for a period of two years. Whilst the order is now no longer operative, it was certainly a relevant factor at the date of the hearing, and on the date the Orders were made by this Court. I indicated to counsel on 28th February, when submissions had been completed, that I would not be making an order that there should be no contact at all. Even so, where there is an Apprehended Violence Order in force, the Court should be mindful of the terms of that order.
Section 68K states:
“68K(1) [Considerations for the court] In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
a) is consistent with any family violence order; and
b) does not expose a person to an unacceptable risk of family violence.
68K(2) [Safeguards] For the purpose of paragraph (1)(b) the court may include in the order any safeguards it considers necessary for the safety of those affected by the order.”
The Apprehended Violence Order made on 23rd January 2001 contained orders that included a prohibition on the Applicant approaching, contacting or telephoning the Respondent except for the purpose of arranging contact, and restrained the Applicant in these proceedings from otherwise contacting the Respondent except through the Applicant’s legal representative. I am satisfied that any contact orders made in the circumstances where there is not only an Apprehended Violence Order in force but evidence of ongoing threats and harassment should not be inconsistent with the existing Apprehended Violence Order, and should ensure that the parties have as little opportunity for fact to face contact as possible. Supervised contact, with the assistance of a contact centre, is a way of bringing contact about whilst protecting the safety of the protected person in an Apprehended Violence Order.
Conclusions
It was submitted by Mr Bateman of counsel on behalf of the mother that the father is a “sexual predator”[xxx] and the evidence of the father’s activities over the years gives support to that description. There is certainly evidence to show that the mother had come to fear the father by the time these proceedings had commenced, and Ms S A, D A and
S P confirmed that they, too, feared him. At the same time, there was some evidence that the father wished to have a genuine father-child relationship with D , and I have already commented on the fact that the mother’s other children had no regular or frequent contact arrangements with their various fathers.
I came to the view that there should be contact between the father and the child, but that it should be supervised, in order to protect the mother from violence, threats or intimidation by the father. Supervision through a contact centre, such as R at Hamilton, would enable contact to take place whilst keeping the parties separate and reducing any opportunity that the father may seek to abduct the child. The contact available this way would necessarily be less than that recommended in the Family Report, but the security of the mother was a factor that was a feature of the evidence in this case.
It was for the above reasons that the orders of 19th April 2002 were made.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 August 2002
[i] Transcript 28.2.02 page 65
[ii] Transcript 28.2.02 page 68
[iii] Transcript 2.11.01 page 41
[iv] ibid.
[v] Transcript 28.2.02 page 4
[vi] Transcript 28.2.02 page 13
[vii] Transcript 2.11.01 page 59
[viii] Transcript 2.11.01 page 58
[ix] Transcript 2.11.01 page 61
[x] Transcript 27.2.02 page 24
[xi] Transcript 27.2.02 page 35
[xii] Transcript 27.2.02 page 47
[xiii] Transcript 27.2.02 page 52
[xiv] ibid
[xv] Transcript 27.2.02 page 53.
[xvi] Transcript 27.2.0 page 113
[xvii] Transcript 27.2.02 page 119
[xviii] Transcript 28.2.02 page 6
[xix] Transcript 28.2.02 page 17.
[xx] Family Report, page 7
[xxi] Family Report, pages 10 and 11
[xxii] Family Report, page 13
[xxiii] Family Report, page 16
[xxiv] ibid
[xxv] Transcript 28.2.02 page 41.
[xxvi] At 75-6
[xxvii] At 84173-4
[xxviii] S 68F(l)
[xxix] Transcript 28.2.02, page 77.
[xxx] Transcript 28.2.02 page 54
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