Sampson and Marsh - [2007] FamCA 1554

FAMILY COURT OF AUSTRALIA

SAMPSON & MARSH

[2007] FamCA 1554

FAMILY LAW – CHILDREN – Interim orders made reserving Father’s contact with children given his current incarceration and awaiting trial for serious criminal offences involving the Mother – Comments made on the issue of gross domestic violence and its effect upon children

Family Law Act 1975 (Cth)

B & R [2005] FamCA 1361;
Re L (& Ors) (Contact: Domestic Violence) (CA) (2000) 2 FLR 334 at page 341;
T & N (2003) FLC 93-172;
M & M (2000) FLC 93-006;
M & M (1988) FLC 91-879 at 77-080

APPLICANT:

Ms Sampson

RESPONDENT:

Mr Marsh

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2007

DATE DELIVERED:

20 November 2007

PLACE DELIVERED:

Mildura

PLACE HEARD:

Mildura

JUDGMENT OF:

Guest J

HEARING DATE:

20 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Boreham

SOLICITOR FOR THE APPLICANT:

Indigenous Family Violence Prevention Legal Service

COUNSEL FOR THE RESPONDENT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Watson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Watson & McLeod

Orders

That all previous orders be discharged
That the Mother have sole parental responsibility for the children of the relationship N born … March 2005 and K born … September 2006.
That the children of the relationship live with the Mother.
That decisions in relation to the children’s time with the Father be reserved to the Court.
That all extant applications be dismissed and that the proceedings be otherwise removed from the Active Pending Cases List.
That the Independent Children’s Lawyer be discharged.
That pursuant to s65DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 88 of 2007

MS SAMPSON

Applicant

And

MR MARSH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This matter comes before me at the regional sittings of the Family Court of Australia at Mildura. It is constituted by a parenting dispute concerning two children, N who was born in March 2005 and K who was born in September 2006.
The mother has brought an application that the children live with her. The affidavit material reveals that the father has a long history of criminal activity, gross domestic violence and involvement with the Department of Human Services. He is currently facing very serious criminal charges.
I am satisfied that the father is aware of the proceedings this day. An affidavit of service was filed on 19 November 2007. Furthermore, I am satisfied that the documents were remitted to the father at the … Correctional Complex on 12 November 2007 and again on 14 November 2007. He received the documents personally from those in the Authority on 16 November 2007. He has signed an Acknowledgement of Service.
A short background to the matter is as follows. The mother was born in April 1986 and is 21 years of age. The father was born in September 1975. He is 32 years of age. Their relationship started in 2001 and they commenced to live together in 2002. Following gross difficulties between them, they separated in 2006.
I have, in support of the mother's application, a very detailed and excellently drafted affidavit. I have carefully read that affidavit and the previous court orders that have been made in the proceedings which are dealt with in paragraphs 9 and onwards of her affidavit. There is also recited serious Apprehended Violence Orders to which the father is subject and which constitute a central aspect of the proceedings.
The mother deposed to the fact that there are two current criminal cases ongoing at the … Local Court which involve charges against the father for alleged violence against her and constituted by the fact that on 6 August 2007 he was charged with conspiracy to commit grievous bodily harm to her. The proceedings are yet to be heard. Further, that on 7 August 2007 the father was apparently to be sentenced for maliciously wounding the mother. He pleaded guilty to the charge but the sentencing process has been adjourned by reason of the further charge brought against him for conspiracy to commit grievous bodily harm.
The mother, in her affidavit, details matters that are relevant concerning the general disposition of both N and K and their overall development. I am satisfied that she, being charged with the sole and onerous responsibility for their general care, welfare and development, is undertaking that task to the best of her ability.
The mother has deposed to a number of paragraphs dealing with the relationship between herself and the father. For example, early in their relationship in 2004 she tried to leave the father, but he would not let her out of the house. He held her “hostage” with a knife. The police took out an Apprehended Violence Order against him. The mother deposed that the father was subsequently found guilty of an assault upon her and incarcerated for three and a half months. That is a measure of the seriousness the court took of the violence he perpetrated upon the mother. However, as often transpires in cases of domestic violence, when he was released, albeit the parties did not get back together straightaway, they subsequently did resume their relationship.
The mother also deposed that whilst 29 weeks pregnant with K when living in outback New South Wales, the father “became angry” with her and, seemingly to me, erupted into an unbridled rage, grabbed her by the hair and started dragging her and “bashing” her head. The mother deposed that he threatened to kill her and, "the kid in my guts". The child N witnessed the gross domestic assault perpetrated by the father upon her mother. She deposed that N was, "very frightened and distressed". The mother went into early labour as her vital membranes were ruptured. She was flown from the local Hospital to a Hospital in Adelaide where she stayed for two days until the labour was halted. She returned to outback New South Wales.
In paragraphs 37 and onwards the mother details further history of family violence. She deposed that the father had always been violent and abusive towards her and recalled that the first time he ever struck her was in the first week they commenced to cohabit. She deposed that she tried many times to leave him but he threatened her and that he “plays mind games and I go back to him because I am scared for myself and our children”.
The mother deposed that over the years they had been together the father had assaulted her "viciously" on many occasions. The assaults upon her were undertaken at times when he was both affected by alcohol and also when he was sober. He accused her of gross infidelities. He “yelled” at her, he threatened to “kill her” and the children and threatened to “burn down” her mother's house.
The litany of gross domestic violence that is recorded by the mother is somewhat spellbinding in its intensity. In paragraph 45 she recalled episodes of "recent violence" which included that on 13 January 2007 he struck her on the head with a beer mug. She had four stitches. She deposed this event occurred in the rooms of the local Sports Memorial Club. He was charged with assault by the New South Wales police and found guilty of malicious wounding.
She recalled another incident on 3 August 2007 when, whilst in the kitchen of their home and yelling at her, he punched her in the face several times whilst holding her against the wall by her hair. The mother deposed he got a kitchen knife and held it against her neck. Both N and K were home at the time and N observed the incident as it occurred. The police were called.
The mother then deposed to other aspects concerning involvement by child welfare authorities and otherwise what she styled as "recent events". These included an appointment with a Family Consultant in Mildura on 1 August 2007. The mother said she had arranged for a worker from the Mildura Aboriginal Corporation to pick her and the girls up for the appointment. She did not feel well that day. When the worker telephoned her solicitor she learned that the father's lawyer had cancelled the appointment as well as the Family Consultant being unwell.
The mother then deposed to more recent conversations which I accept not as evidence of the truth but as evidence of the fact of what she was informed. She deposed, for example that on 6 August 2007, Detective Senior Constable G of the New South Wales police came to her house. He informed her that the father was arrested and that she was required to make a statement. She was told that the father had “hired a hit man” to break both her legs and to kill one of his ex-girlfriends and that the police had this conversation on tape as one of those present was wearing “a wire”. The father was arrested that day and has since been locked up. The mother otherwise recorded episodes in which the father indulged in the taking of illegal substances, including speed. The affidavit records in detail the matters that underpin the mother's case before the court. They tell a sad history of gross domestic violence which, in my view, is utterly intolerable.
The mother deposed to the personal arrangements of the children, and which I accept. She went on to say that since the father went to gaol she had been taking the children out to see his parents. That is very much a measure of the mother and indicates to me that she has the children's best interests beyond any personal feelings of antipathy she may feel and is obviously encouraging a broad family involvement.
The mother deposed that she and the two girls spend the day with the family “a couple of times a month”. She said that at times when there, the father telephoned from gaol and spoke to the girls and his parents. He sought to induce her to drop the Apprehended Violence Order so he could be released from prison. The mother deposed that the girls, "seem to miss him", and that N keeps asking where he is and saying, "Dad gone", and that she is now “playing up”, “throwing tantrums” and “yelling” a lot. That does not surprise me.
I had reason to consider the issue of gross domestic violence in a case B & R [2005] FamCA 1361. The starting point appears to me to be a decision of the English Court of Appeal Re L (& Ors) (Contact: Domestic Violence) (CA) (2000) 2 FLR 334 at page 341 where Dame Elizabeth Butler-Sloss, president, had this to say:
“There are however a number of general comments I wish to make on the advice given to us. The family judges and magistrates need to have a heightened awareness of the existence of and consequences, (some long-term), on children of exposure to domestic violence between their parents or other partners. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background on the premise that they were matters affecting the adults and not relevant to issues regarding the children. The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting - failure to protect the child´s carer and failure to protect the child emotionally ...
[Later]
As a matter of principle, domestic violence of itself cannot constitute a bar to contact. It is one factor in the difficult and delicate balancing exercise of discretion. The court deals with the facts of a specific case in which the degree of violence and the seriousness of the impact on the child and on the resident parent have to be taken into account. In cases of proved domestic violence, as in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, (if any), of contact between the parent found to have been violent and the child. In this context, the ability of the offending parent to recognise his past conduct, be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.” (p 342)
In the course of my judgment in B & R (supra) at paragraph 193 I had this to say:
“What arises from decisions such as that cited is the obligation of the violent parent first to acknowledge and then to address the issue of his/her abuse of the other parent in an unfeigned and authentic matter. In my view, the issue of whether or not the abusive parent is capable of change is a most important one indeed. There is an obligation upon a parent in that position to demonstrate to the requisite standard of persuasion that he/she is a fit and proper person to be entrusted with contact to children and that they would not destabilise the primary household in which the children live nor so act as to manipulate or disaffect their relationship with their resident parent.
In the course of my judgment, I also made reference to what Moore J had to say in T & N (2003) FLC 93-172 at paragraph 36 where her Honour brought to bear in a graphic and significant way the importance of the issue of domestic violence. Her Honour most persuasively said this:
“It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the wellbeing of children, whether they are witness to it or not. If they do witness it, anyone can see that such conduct can only be a traumatic experience for them. There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation. They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations ... One could go on to the impact upon their ability to form attachments, and so on.”
Furthermore, and quite recently, Mullane J in M & M (2000) FLC 93-006 had this to say on the particular circumstances of the case in which he was dealing:
“94. The father's abusive behaviour presents a multifaceted danger for the children. There is a risk of violence to them personally and injury. There is a risk that violence poses when it involves living with fear, insecurity and vigilance. There is the danger of ongoing fear that the father will emotionally or physically abuse the mother they love. There is the danger that E will learn from the father's abusive behaviour that abuse is part of life for females and become even more accepting of such behaviour. There is a danger that both children will come to believe from the father's abuse of the mother, that women are lesser beings.
95.But the greatest danger is that B, particularly, will learn from his father's behaviour that physical and emotional abuse are acceptable ways of dealing with other persons and thus come to share his father’s disability. Such a disability would mar his dealings and relationships with others, including those he loves, bring him into conflict with the police, the courts and the community, and result in him being penalised and even being imprisoned.”
In B & R (supra) and again referrable to the gross acts of violence that the father perpetrated upon his wife, the mother of his two children, I had this to say:
“201. Much of what his Honour there (Mullane J) had to say is pertinent to the facts before me. There is a risk of violence to the wife. There is a risk that she will be obliged to live in circumstances of fear and insecurity necessarily causing her to be ever vigilant to face the unknown danger. There was a real risk that the husband will, as I have earlier said in this judgment, denigrate and besmirch the wife to the children and so manipulate and disaffect her relationship with (name concealed). There is the risk, if not one already set in deeper in recesses of the children's minds, that the children will come to accept that the sort of abusive conduct the husband perpetrated against their mother was acceptable. From the evidence I have heard I have no doubt that the husband's conduct had affected Jay's social adjournments at school and his ability to formulate appropriate peer group relationships. This cannot be tolerated.”
In that case I surveyed the importance of a parent spending time with children and what the High Court had to say in M & M (1988) FLC 91-879 at 77-080 and other important authorities. In the result orders were made that there be no contact at all between the father and his children. There was proper basis for so doing which was in their best interests.
The violence that has been perpetrated upon the mother by the father in this case is as bad as it can get. I see, from the Minutes of Proposed Orders, which I mark Exhibit “A”, that decisions relating to the children's time to be spent with the father be reserved. Somewhere, I suspect, down the litigation avenue in the future there will be proceedings before a court concerning the father spending time with the children. If the mother satisfactorily demonstrates to the requisite standard of persuasion that to which she has deposed in this case it would be, in my view, quite contrary to the best interests of the children to order contact of any nature between them and their father. I am not, by that comment, seeking to bind, for I cannot do so, any future judicial officer. It is a view that I hold on the facts before me as they appear this day.
I propose to direct that my extempore judgment be transcribed and placed on the court file. It will be available to be read by any successor in title to me.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date: 10 January 2008