SETON & ORTON

[2014] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

SETON & ORTON [2014] FCCA 391

Catchwords:
FAMILY LAW – Parenting – where the father filed an application in January 2013 seeking to spend time with children he had not seen since separation in mid-2010 – where the mother alleged that the father was a violent and abusive man and opposed the children spending any time with him – where a family report was prepared which recommended no time – where the father did not accept the recommendation and the matter was listed for hearing – where the father withdrew his application 13 days prior to the hearing – where the children need protection from the father, not a chance to develop a relationship with him – orders made as sought by the mother.

Legislation:

Family Law Act, ss.60CC, 61DA, 68B

Applicant: MR SETON

Respondent: MS ORTON

File Number: NCC 162 of 2013

Judgment of: Judge Terry

Hearing date: 26 February 2014

Date of Last Submission: 26 February 2014

Delivered at: Newcastle

Delivered on: 4 March 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondent: Mr Kelly

Solicitors for the Respondent: Craney Family Solicitors

Solicitor Advocate for the Independent Children's Lawyer: Ms Adams

Solicitors for the Independent Children's Lawyer: Adams & Associates

ORDERS

1. The mother shall have sole parental responsibility for the children [V] born [in] 2002, [W] born [in] 2003, [X] born [in] 2004, [Y] born [in] 2006 and [Z] born [in] 2007 (“the children”).

2. The children shall live with the mother.

3. The children shall spend no time with and have no communication with the father.

4. Pursuant to s.68B of the Family Law Act 1975 the father is restrained and an injunction is granted restraining him from:

   (a)entering or approaching within 100 metres of the mother’s residence;

   (b)entering or approaching within 100 metres of any school the children attend;

   (c)approaching the mother;

   (d)approaching any of the children;

   (e)communicating with the mother;

   (f)communicating with any of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 162 of 2013

MR SETON

Applicant

And

MS ORTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue in these proceedings is whether orders should be made which will allow the father to commence spending time with his children [V], 12, [W], 11, [X], almost 10, [Y], 7, and [Z], 6.

2. The father has spent no time with the children since mid-2010 when the parents separated after an on-off relationship which commenced in 2001.  

3. The mother obtained an Apprehended Domestic Violence Order (ADVO) against the father soon after separation and for most of the currency of that order the father let things ride and did not press the issue of spending time with the children. In September 2011 however when the ADVO was about to expire he sought legal advice with a view to obtaining parenting orders.

4. The father’s solicitor applied for legal aid and Legal Aid NSW said that they would organise a mediation but before mediation could take place the father was arrested and charged with sexually assaulting [W].

5. The father pleaded not guilty to the charges and on 29 August 2012 after a hearing in the District Court he was acquitted. Following this he again applied for legal aid to pursue parenting matters and on 24 January 2013 he filed an application in this court.

6. The orders sought by the father were that the children live with the mother and spend time with him each alternate weekend and each alternate Thursday overnight to Friday during school terms and for half of the school holidays.

7. On 8 February 2013 the mother filed a response. She sought orders that the children live with her, that she have sole parental responsibility for them and that they spend no time with the father.

8. The mother alleged that:  

   ·     the father had been relentlessly violent to her during their on-off relationship; he regularly hit her and threw things at her, attempted several times to stab her with a kitchen knife and had picked her up and thrown her to the ground, punched her in the face causing black eyes and attempted to strangle her.

   ·     the children had observed the father’s violence and the mother’s injuries;

   ·     in 2002 the father tried to stab his parents’ neighbours in the presence of [U], his daughter from an earlier relationship. The police were called and the father was charged and convicted and sentenced to a term of imprisonment;

   ·     the father had been abusive of the children during the relationship; he had hit them hard enough to leave welts, hit them with a belt and made them stand with their nose to the wall for an hour or more. [X] had a visible scar under her eye as a result of the father hitting her.

   ·     the father assaulted the mother with his fists and threatened her with a knife when she raised with him during the relationship an allegation made by [W] that the father had been inappropriately touching her;

   ·     the father used marijuana and ice during the relationship;

   ·     the father had harassed her since separation and he and his current partner Ms C had driven past her home yelling abuse;

   ·     the father had abused and threatened the mother’s  brother after the father was charged with sexually assaulting [W];

   ·     [V], [W] and [X] were scared of the father and did not want to spend any time with him.

9. The mother said that the children were doing well in her care, were attending school regularly and had a good relationship with her new partner Mr T. She admitted that [V] had suffered serious burns in 2011 after a fire which started in [V]’s bedroom but said that [V] was receiving on-going treatment and her injuries were slowly healing.

10. On 16 March 2013 the parties attended a child dispute conference with a Family Consultant pursuant to s.11F of the Family Law Act. The mother made further allegations to the Family Consultant namely that:

    ·     the father had a history of being violent to partners and was jailed for breaking one partner’s arm;

    ·     the police had intermittent involvement with the parties during their relationship as a result of the father’s violence;

    ·     she was fearful of the father and extremely anxious at the thought of coming into contact with him.

11. The father admitted to the Family Consultant that he had an extensive criminal history which included convictions for drug offences, armed robbery, assaults and multiple drive while disqualified offences and he admitted having spent time in jail. He denied however that he had ever been violent to the mother or abusive to the children.

12. The father made complaints about the mother’s parenting capacity. He said that the house fire had happened because of her neglect and that her neglect had also resulted in one of the children being hit by a car.

13. The Family Consultant expressed the view that if the children were to be re-introduced to the father it should be by way of supervised time, but she also recommended that the children’s views be ascertained before an order was made for supervised time and that an Independent Children’s Lawyer be appointed.

14. Following the child dispute conference an Independent Children’s Lawyer was appointed, an order was made for the father to undergo drug testing and in April 2013 a Family Report was ordered. Due to the serious allegations of family violence and the allegation that some of the children were opposed to seeing the father no interim orders were made for the children to spent time with the father. 

15. In August 2013 Mr P, a Regulation 7 Family Consultant, saw the parties for the purpose of preparing a Family Report.

16. The father told Mr P that he had a good childhood but in his teens commenced using marijuana and later intravenous amphetamines. As a result he committed an armed robbery and in 1997 he was sentenced to five years imprisonment of which he served three.

17. The father commenced his relationship with the mother soon after his release from prison. He admitted that he resumed using marijuana and amphetamines upon his release and that he later commenced using ice.

18. In 2003 the father was convicted of assault occasioning grievous bodily harm. He was initially placed on a periodic detention order but was non-compliant with the order and was incarcerated.

19. In 2007 the father did a ram raid on a shop while on ice and was again incarcerated.

20. The father denied that he had ever been violent to the mother or had abused the children and he adamantly denied sexually assaulting [W].

21. The father told Mr P that he no longer used drugs, had produced clean drug screens during the proceedings and had done a parenting after separation course. He said that he had matured and had “gained insight that gaol and drug use were counter-productive to a lifestyle whereby he can be a parent.” 

22. The father’s partner Ms C told Mr P that she had not experienced any violence at the father’s hands and that he was learning to care for their two year old child.

23. The mother told Mr P that she had been exposed to domestic violence between her mother and step-father as a child and that her step-father had sexually abused her from when she was seven or eight.

24. The mother alleged that only a few weeks into her relationship with the father he became jealous and controlling and began to hit her and throw objects at her and denigrate her constantly. She said that he was always very controlling of the children and that the only respite she and the children had from his behaviour was when he was in jail.

25. The mother admitted that she had used marijuana and amphetamines with the father but said that she had not used illicit drugs since separation.

26. The mother’s partner Mr T told Mr P that he had convictions for drink driving and assault and that there was a current ADVO against him taken out by the mother of his youngest child but he and the mother both maintained that there was no violence in their relationship.

27. [V] told Mr P that she had observed the father punch the mother and that he had hit [V] with a belt more than once and was very controlling; for example he would not allow the children to sit on the lounge and made them face the wall for an extended period.

28. [V] said that she was glad when the father left in 2010 and did not want to spend any time with him even supervised as the thought of it was “scary.”

29. [W] said that she had seen the father with a knife trying to stab the mother and that he flogged the children with a belt. [W] said that she did not want to spend any time with the father.

30. [X] said that the father had flogged the children with a belt and never played with them and that she would be reluctant to spend time with the father in the future.

31. [Y] said that she had no memory of her parents cohabiting and Mr P chose not to interview [Z].

32. During the report interviews the children agreed to spend time with the father with Mr P present. Mr P said that the youngest two children were warm and communicative with the father, [W] was shy and [X] and [V] volunteered some information about themselves.

33. The four oldest children all made many positive comments about the mother and her current partner to Mr P and he observed a good relationship between them and the children.

34. Mr P expressed the opinion that in the light of the history generally and the information provided by both the mother and the children the father’s denials of family violence and abuse of the children were not credible. The father’s denials meant that he neither accepted nor understood the impact of his behaviour on the mother and the children and Mr P said that it was hard to see any immediate benefit to the children in resuming a relationship with him. He said that a good start for the father would be to write letters of apology to the children and desist from harassing the mother.

35. Mr P expressed the opinion that the children would be at risk of physical and psychological harm if they spent unsupervised time with the father and that he did not support an order that they spend time with him even in a supervised setting. He recommended that the father be permitted to send letters and photos to the children three times a year and that he engage with a counsellor who had experience in family violence matters.

36. The father did not accept these recommendations and on 20 September 2013 the matter was listed for hearing for three days commencing on 26 February 2014.

37. The mother filed affidavits for the hearing as ordered but the father did not and on 11 February 2014 his solicitor filed an application seeking an adjournment.

38. In the affidavit filed in support of the application the father’s solicitor said that he had neglected until January 2014 to apply for an extension of the father’s legal aid to cover the hearing and that after he lodged the application he received a request for further information. He said that the legal aid application could not now be dealt with in sufficient time for him to assist the father to run the hearing and that the father did not feel able to conduct the hearing himself.

39. The adjournment application was listed before me on 13 February 2014. The mother’s solicitor indicated that the application was opposed and the father’s solicitor then advised that she had been instructed to withdraw the father’s application for parenting orders.

40. I dismissed the father’s application and left the mother’s application listed for hearing on 26 February 2014.

The hearing on 26 February 2014

1. The father was not in attendance on 26 February 2014.

2. Prior to the hearing I read the affidavits the mother filed for the hearing namely her trial affidavit and the affidavits of Mr T, Ms M and Ms A.

3. In her trial affidavit the mother repeated her earlier evidence about family violence and added some additional detail about the assaults she had suffered at the father’s hands including that she had been dragged by the hair. She provided some updating evidence about the children.

4. Mr T provided information about himself and the time he spent with the mother and the children and he also gave evidence about an incident which occurred at the home of Ms M, a friend of the mother’s.  

5. Mr T said that on 22 July 2013 he was at Ms M’s home with Ms M and her partner when the father and Ms C pulled up outside the house blasting their car horn. He said that he and Ms M’s partner went outside and the father tried to start an argument with them. The father and Ms C then drove off but the father returned not long afterwards with a male friend in the car. Ms C drove up behind him in another car in which her three children were passengers and a third car with two occupants also pulled up. Mr T said that various people shouted things out trying to get him and Ms M’s partner to fight them in the street but that he and Ms M’s partner went inside.

6. Ms M corroborated Mr T’s account of what happened on 22 July 2013 and said that during the incident Ms C called her a slut and a junkie.

7. Ms M said that she had known the mother since before the mother and father met and that she had observed many frightening behaviours by the father while the mother and father were in a relationship. She said that she was in a car with them on a trip to [omitted] during which the father drove at speeds of over 200kmh despite the passengers shouting at him to slow down and was in a car with them on another occasion when the father argued with the mother and threatened to drive into a power pole and swerved away at the last minute.

8. Ms M said that she would never allow her children to play with the mother’s children while the mother and the father were together because of her concerns about the father’s violent behaviour and that she stopped talking to the mother in 2010 after the father’s whole family came to her home and confronted her. She said that she decided to stop talking to the mother because she was concerned for the safety of her own children.

9. Ms M said that she resumed contact with the mother in 2011 and supported her after [V]’s injury but was forced to stop talking to her again in 2011-12 because of intimidation by the father and his family, which included driving past her house yelling abuse and beeping car horns at all hours.

10. Ms A said that her sister Ms D was in a relationship with the father in 2009-2010. She said that she saw her sister regularly prior to the relationship but after it commenced she saw less of her.  

11. Ms A said that on one occasion when she did see her sister she observed that she had bruises on her arms and a black eye but when she asked what had happened her sister said that it was nothing.

12. Ms A said that during a family gathering which the father and Ms D attended at her home on Christmas Day 2009 she saw the father slap her sister across the face, push her into a wall and raise his fist as if to punch her. Ms A said that she stepped between them and told the father to get out of her house. She said that the father went outside and repeatedly kicked her letterbox and shouted that he would burn her house down. Ms A called the police who attended.

13. Ms A said that another occasion her sister visited her and said that she had a broken arm caused by the father and that it was reported that the father had held a pair of scissors to her sister’s throat and threatened to kill her.

14. Ms A said that after her sister ended her relationship with the father he would come to Ms A’s house and throw things at her house. She said that she would call the police but by the time they arrived the father would be gone. Ms A said that in recent times she had been verbally abused and intimidated by the father, Ms C and paternal grandmother and paternal aunt in the street and outside her grandchildren’s school.

15. Ms A said as follows:

    I am concerned that I will be subjected to further harassment from [Mr Seton] and his family because I have provided this affidavit, however I refuse to live in fear and neither should anyone else. I am providing this affidavit in support of [Ms Orton] to give a clear view of what [Mr Seton] is like.

16. As the hearing on 24 February 2014 was an undefended hearing only the mother went into the witness box and she provided some brief additional information. I then heard submissions from the mother’s counsel and the Independent Children’s Lawyer.

The children’s best interests

1. Before making any orders about children, even when the matter is undefended, I must be satisfied that it is in the children’s best interests that I make those orders.

2. I am satisfied that it is in the children’s best interests that I make an order that they live with the mother. They have done so since separation in mid-2010, they are content with this arrangement and they have a good relationship with the mother. They are attending school regularly and the mother is appropriately caring for [V] who is still recovering from her burns.

3. My one concern about the mother’s situation is her relationship with Mr T. Mr T lives separately from the mother but spends nights at her home. The children have a satisfactory relationship him but Mr T has a criminal history and is the subject of an ADVO to protect a former partner and in the light of the mother’s history this causes me concern.

4. The mother was exposed to domestic violence as a child and was a victim of childhood sexual abuse, and she remained in a relationship with the father, a violent and domineering man, for a very long time. There is always a risk of the mother again making choices about relationships which lead to her being subjected to violence and which result in the children either being abused or exposed to family violence.

5. There was no sign that this was happening in the mother’s relationship with Mr T at present however and the Department of Family and Children’s Services have no involvement with the family and it is appropriate that I make an order that the children live with the mother.

1. The mother used drugs while she was with the father but there was no evidence that her drug use was as extensive as the father’s and she produced 3 clear drug screens during the course of the proceedings. There was nothing to cast doubt on her claim that she had not used drugs since separating from the father.

2. I am satisfied that it is appropriate to order that the children spend no time with and have no communication with the father.

3. The mother gave compelling evidence that she was a victim of serious domestic violence at the father’s hands during the relationship and I agree with Mr P that the father’s denial that this occurred is not credible. The father has served a term of imprisonment for assault occasioning grievous bodily harm, he was a hard drug user throughout his relationship with the mother, two of the children told Mr P they had witnessed the father assaulting the mother and the evidence of Ms A, which suggests a propensity in the father to be seriously violent to domestic partners, is compelling.

4. I also accept that the father used a belt on the children, which constitutes abuse as defined in the Family Law Act, and that he engaged in domineering and controlling parenting practices such as making the children stand against the wall for lengthy periods.

5. The father withdrew from the proceedings and there was nothing to contradict the mother’s evidence that after separation the father and his partner subjected her to harassment and verbal abuse. Ms M, Ms A and Mr T all provided evidence which confirmed the father’s propensity to engage in this sort of behaviour.

6. The mother’s evidence that the father had failed to pay child support and owed arrears was also uncontradicted and I accept it but this is the least of the problems for the father in this case.

7. The fact that the father has done a parenting after separation course and has produced clear drug screens does not mean that I can be satisfied that he would not subject the children to the same abusive and oppressive parenting practices he used in the past. Until the father acknowledges his past behaviour there is no prospect of him satisfying anyone that he will not behave that way again in the future.

8. There was absolutely no evidence that the father had ceased to be a violent man, indeed the evidence was to the contrary and I am satisfied that the children would be at an unacceptable risk of being subjected to or exposed to abuse and family violence if they spent unsupervised time the father.

9. I also agree with Mr P’s opinion that it would be psychologically harmful for the children to spend supervised time with the father.

10. The father does not admit that during his relationship with the mother he was violent to the mother or that he abused the children and acted oppressively toward them. This is however the reality for the three older children and they might be re-traumatised if forced to spend time with the father.

11. I accept that during the observations conducted by Mr P the two youngest children interacted warmly with the father, but they were 2 and 3 when the parties separated. The three older children, who have memories of the father’s violence and abuse, tolerated interaction with the father but were not effusive during their time with him and they told Mr P after the interviews that they either did not want to spend time with the father in the future or were reluctant to do so.

12. Absent evidence that the father has changed into a different person there is no prospect of a court making an order for unsupervised time in the future. There would be absolutely no value in potentially re-traumatising the older three children or making orders that only the younger children spent time with the father if the only prospect for any of the children was long term supervised time with the father.

13. Another powerful reason to make an order that the children spend no time with the father is the mother is likely to become highly distressed and fearful if an order is made for time to occur, even supervised time. She became visibly upset instantly during the court proceedings when the Independent Children’s Lawyer made a particular proposal about the orders which the mother misunderstood and thought meant that the Independent Children’s Lawyer was proposing that the children might start having telephone communication with the father.

14. The mother is the only parent of value the children have and it would not be in their best interests to force an outcome which would cause the mother mental anguish.

15. Finally the situation with [W] is psychologically fraught with difficulty given that the father was acquitted of sexually assaulting her but according to the mother [W] believes that the assaults occurred and the mother says that she believes [W].

16. There will be losses to the children in not having a relationship with the father.

17. One or more of the children might over time come to blame themselves for not having a father in their life, and there is a risk of the children (particularly the younger ones) forming an idealised view of their father and not being able to test it against the reality of the father in person and inappropriately seek to resume contact with him when they are still young and vulnerable for example in early adolescence.

18. The children have an older sister [U] from a teenage relationship of the father’s who the father apparently sees regularly and a younger sibling from his relationship with Ms C, and if they do not see the father those relationships will not be fostered.

19. However there was absolutely no evidence that the father had changed into a different person, indeed all the evidence suggested that he was the same violent and threatening person today that he had always been. The evidence further suggested that Ms C was aware of this and was aiding and abetting the father in a campaign of harassing and trying to intimidate the mother, her family and any people brave enough to befriend her.

20. The father is an appalling role model for the children and the children need protection from him, not a chance to develop a relationship with him.

Parental Responsibility

1. I am satisfied that it is appropriate that the mother have sole parental responsibility for the children. The presumption in s.61DA of the Family Law Act does not apply and given the violence the mother has experienced at the father’s hands it would not be appropriate to ask her to communicate with him and attempt to reach agreement with him when major long terms decisions such as choice of school are required about the children.

The Orders

1. I intend to make orders that the children live with the mother, that she have sole parental responsibility for them and that the children spend no time with and have no communication with the father.

2. I also intend to make orders pursuant to s.68B of the Family Law Act for the protection of the children, which will include, as permitted by s.68B (1) (b), an injunction for the personal protection of the mother.

3. The Independent Children’s Lawyer supported orders that the children live with the mother, that the mother have sole parental responsibility and that the children spend no time with the father and she also supported the orders proposed to be made pursuant to s.68B. However she opposed an order being made that the children have no communication with the father.

4. Given that the Independent Children’s Lawyer did not oppose an order that the children spend no time with the father and supported an order restraining the father from communicating with them this seems illogical, but leaving that aside the Independent Children’s Lawyer explained that she opposed the order because it would mean that if the children independently wanted to communicate with the father when they were older but still under 18 they would be prohibited from doing so.

5. This objection misconceived. The children are not parties to the proceedings and if as older teenagers they contact the father or spend time with him of their own volition no-one is going to bring contravention proceedings against them.

6. The father will be in breach of the s.68B order if he responds to the children trying to spend time with him or communicate with him as teenagers but this is not a good reason to refuse to make the orders. If the father turns over a completely new leaf and is able to demonstrate it he can apply to the court to vary the orders. Until then and until they are much older the children need and deserve all the protection the mother and the orders can provide.

7. For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:       

Date:              04 March 2013