Smith and Coal

[2011] FamCA 677

FAMILY COURT OF AUSTRALIA

SMITH & COAL [2011] FamCA 677

FAMILY LAW - CHILDREN – Final Orders – with whom a child lives – with whom a child spends time – with whom a child communicates – order that children live with the mother – the question of the father’s time with the children be reserved or be as otherwise agreed between the parties in writing – injunctive orders – order that mother be permitted to change the children’s surnames

FAMILY LAW - CHILDREN – Interim Orders – injunctive orders – orders for the personal protection of the mother and children – order made pursuant to s 68C of the Act

Family Law Act 1975 (Cth) s 68C

APPLICANT: Ms Smith

RESPONDENT: Mr Coal

INDEPENDENT CHILDREN’S LAWYER: Mr Turnbull

FILE NUMBER: HBC 311 of 2011

DATE DELIVERED: 11 August 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 11 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Chandler

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of Tasmania

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr M. Turnbull

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ogilvie Jennings

Orders

1. Ms Smith (“the mother”) have sole parental responsibility for N born September 2003 and B born January 2006 (“the children”).

2. The children live with the mother.

3. The mother be authorised to sign all documents and give all consents necessary to change the surname of the children from Coal to Smith.

4. The time that Mr Coal (“the father”) spends with the children be reserved and as agreed between the parents in writing or as othewise ordered by a court exercising jurisdiction under the Family Law Act.

5. Mr Coal (“the father”) be and is hereby restrained from approaching or communicating with the children except as agreed in writing with the mother or as otherwise ordered by a court exercising jurisdiction under the Family Law Act.

6. UNTIL FURTHER ORDER for the personal protection of Ms Smith the mother, N and B, Mr Coal is restrained from assaulting, molesting, harrassing, stalking, abusing or otherwise interferring with Ms Smith, N, B, entering upon or loitering near premises known as … G Street, Hobart Suburb 1 in Tasmania or any other premises in which the mother and the children are residing or otherwise occupied AND IT IS NOTED that these are orders for the personal protection of Ms Smith, N and B and a breach of which attracts the power of arrest without warrant pursuant to s68C of the Family Law Act.

7. Pursuant to s.65DA(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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. The appointment of the Independent Children’s Lawyer be discharged as and from twenty eight (28) days of the date of this order.

   IT IS DIRECTED

9. The Independent Children’s Lawyer forward a copy of these orders by ordinary pre-paid post to the father within seven (7) days of today’s date.

10. A copy of a transcript of the reasons for these orders be taken out and placed on the court file.

11. All exhibits on the file remain on the court file.

12. All documents on subpoeana be either returned to the organisation that produced them or if they are copies, such copies to be destroyed after twenty eight (28) days from the date of this order.

    IT IS FURTHER ORDERED

13. This matter be removed from the list of cases requiring determination.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 311 of 2011

Ms Smith

Applicant

And

Mr Coal

Respondent

REASONS FOR JUDGMENT

1. This is an undefended hearing in relation to the parenting arrangements for N, age seven, almost eight, and B, age about five and half.  This is an application by their mother Ms Smith for a series of orders.  The orders she seeks are that the children live with her and that she have sole parental responsibility.  She seeks permission to change the children’s surname from Coal to Smith and to reserve the time the father has with the children to agreement between the parents or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth), and further an order that the father be restrained from approaching the children except as agreed by the parties or ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

2. The mother seeks a personal protection order and seeks that a breach of the order attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975 (Cth). This is a proceeding where an Independent Children’s Lawyer has been appointed and has considered the material and has provided material to the Court and supports those orders being made. The first matter to which I need to turn my mind is whether the father is aware of the proceedings.

3. There is on the Court file an affidavit of service saying that he was personally served with the documents on 19 April 2011 and I note that the proceedings were returnable before a registrar of this Court, on 1 June 2011.  Following the mention on that date, a registrar of this Court adjourned the proceedings to 15 June 2011.  The proceedings then came before the Court on that day and there was no appearance by the father.

1. The father was present on the first occasion.  He was not present on the second occasion.  On that occasion, a letter was sent to the father dated 16 June informing him that the proceedings had been adjourned to 29 June before a registrar of the Court.  The matter came before the Court on 29 June and there was no appearance by the father on that second occasion and the proceedings were adjourned for possible undefended hearing before me.  The father was informed of that by letter dated 8 July 2011.  His name was called outside Court today and there was no appearance by him.  I am satisfied that he has had notice of the proceedings and has not engaged in the proceedings and as such I intend to proceed with the application in his absence.

2. The material before me, and upon which the mother and presumably the Independent Children’s Lawyer seek to rely, is the application filed on 19 April 2011; an affidavit by the mother filed the same day and sworn 28 March 2011;  a notice of risk of abuse which was filed the same day; a Police Family Violence order which was dated 30 October 2010 and which I note expires 12 months from that date, which is 30 October 2011; some comments on sentencing delivered by Blow J on 5 August 2011 in relation to the conviction and sentencing of father in respect of sexual abuse of a child, the details of which I will refer to later and an affidavit by Ms S, a clinical nurse specialist therapist from the Department of Health and Human Services in relation to the impacts and behaviour on N.

3. That evidence is admitted unchallenged and it is the evidence upon which I will base my reasoning and the orders which flow from that reasoning. My task is, of course, set out in s 60B of the Family Law Act 1975 (Cth) which sets out the objects and principles that underline parenting orders and they essentially fall into two areas. The first, that children are entitled to know and benefit from having a meaningful relationship with both of their parents. At the same time, children are entitled to be protected from physical or psychological harm or being exposed to abuse, neglect and family violence and that is, in essence, the crux of the matter before me today.

4. The mother who, on the evidence, is clearly the primary carer of these children has from time to time, endeavoured to encourage a relationship between the children and their father, and in the circumstances which are set out in her affidavit.  That encouragement has been in spite of some fairly difficult and anti-social behaviour on the part of the father.  It is apposite to look at the mother’s affidavit and consider what she seeks.  She sets out a history of the relationship including the birth of the two children, her observations of the father and some information she obtained in relation to the father’s mental health and his anger.

5. The father had from time to time formed other relationships and had misled the mother in terms of those relationships.  That in itself is not an unusual feature of life in modern Australia, unfortunately, and in many respects, the mother dealt with that in a mature, child-centred way.  It is, however, the father’s mental health, use of anger, physical discipline, violence and allegations of sexual abuse that are of significant concern in this matter and are the reason why the Independent Children’s Lawyer was appointed and why this matter has reached the stage that it has.

6. There is significant indication, and I do not intend to detail it item by item but I have had regard to it in the affidavit, of angry and violent behaviour on the part of the father addressed to the mother, to the children and to others and to which the children have been exposed.  That behaviour, at that level, shows significant lack of insight on the part of the father in terms of the child and there is no indication that he has addressed the issues giving rise to that behaviour.  The mother says appropriately in paragraphs 49, 50, 51 and 52 and 53 of her affidavit filed the 19 April 2011 the following:-

   49.I am concerned that [the father’s] mental health issues affect his ability to look after the children, in that he is quick to anger and unpredictable, has self-harmed, threatened suicide, overdosed on pills and the like.

   50.I am concerned that both children, particularly [N], are affected by trauma, including exposure to incidents of family violence, and that that relates to [the father], yelling at and physically disciplining them, damaging or destroying property, hurting them or other children in the household and/or other behaviours described in this affidavit.  [N] has tried to cut herself.  [N] needs a lot of attention, is very clingy to me and jealous of her younger brother.

   51.I am concerned that [N] may have suffered some form of inappropriate sexual act as raised by her counsellor whose name I am reasonably sure was [and then names the person].

   52.If the allegations against [the father] are true, then I am concerned that [N] may be at risk of inappropriate sexual conduct from the father.  I am concerned that his capacity to be available to [N] may be affected by a period of imprisonment.  I am concerned that there will be considerable difficulties in the relationship between members of the paternal family because of the father’s alleged conduct.  I am afraid that the father will again be violent towards me and may carry out any threats made.

7. The mother then details a significant history of appalling behaviour, can be the only description that adequately relates to it, and I have had regard to that.  It is clear that the father has some form of psychological or psychiatric disturbance which is untreated, if not most of the time, at least, from time to time.  It is clear that the father has been violent and that violence has extended to the children.  The father had connection with a child called E and the father has acted illegally in respect of that child and has been convicted of having unlawful sexual intercourse with her at a time when he was aged 25 and the child was aged 15.  The sentencing judge described the charge as serious and observed that the victim of the crime had a range of psychological symptoms and that gaol was an option that he had considered.  The father was sentenced to prison but that sentence was suspended and he was placed on the sex offenders register for a period of about five years.

8. The mother raises issues that the daughter may have been sexually abused by the father and sets those out in the affidavit.  I, again, do not intend to go into detail of that in these reasons.  It is of value to observe the evidence of Ms S and the evidence of the mother in relation to N’s reaction to the father.  This report observes:-[1]

   I have strong concerns about [N] and [B] whilst in their father’s care.  I believe the father severely underestimates the extremely violent impact of his behaviour, when he is angry or frustrated, upon his children.  Both children have told me they are scared of their father when he is verbally abusive and acting aggressively either towards them or to others or to furniture, walls, etcetera.  Both have indicated to me that this happens regularly.  [N] has an ambivalent relationship with the father where she fears but feels loyal to him and loves him.  This ambivalence is often demonstrated by the children who have lived with abusive parents.

   [1] Affidavit filed the 2 August 2011.

9. The mother has taken steps to deal with the psychological issues that N has exhibited and sets those out in her affidavit.  The father is such that I have great doubts that there is a benefit of a meaningful relationship being put in place, established or reinforced between the children and the father.  This is one of those rare cases where keeping the children away from the father in his current circumstances, and bearing in mind his behaviour, rather than encouraging the relationship.

10. I am also concerned that placing the children in either the supervised or unsupervised care of the father puts them at risk of physical harm or psychological harm and possibly abuse and neglect.  The children have; in particular, N has said she does not want to see the father.  I give that some but no significant weight bearing in mind her age.  I note that the children both love their father and probably miss him, but his behaviour at present is such that his involvement in their lives is, in my view, not in their best interests.  The primary relationship of the children is to their mother.  They have a relationship with their father but it is difficult, to say the least.

11. The mother, to her credit as I have said earlier, encouraged the relationship between the children with the father after their parents’ relationship had come to an end.  But she has now, in the circumstances, sensibly, brought that relationship to an end.  The mother has not closed the door for a relationship between the children and their father and has indicated that if circumstances change, she will open that door again but she wants it to be safe for herself and more particularly the children.

12. The mother observes that she and the children are of Aboriginal heritage but are not active in the community.  She says that if the children expressed an interest in that in future, she will encourage them to do so.  The mother has displayed a strong attitude to the responsibility of parenthood for these children and carries much of the burden, if not all of the burden, and I suspect the pleasure of parenting from time to time.  There are serious issues of family violence to which I have alluded and there is a family violence order which I will refer to a little later.

13. The mother has been the primary decision-maker for the children.  Having regard to the serious allegations raised, and the matters I have discussed earlier in these reasons, this is not a matter where the presumption of equal shared parental responsibility should apply nor would it apply.  This is a case where the mother needs to have sole parental responsibility.  The mother should continue in her role as a primary carer of the children.  At this stage, the father ought not to be involved in the children’s lives for the reasons I have articulated earlier and which are set out in the affidavits and the evidence before me.

14. It is a case where there needs to be a positive injunction to restrain the father from being involved in the children’s lives and there needs to be a broader order preventing him from exhibiting the anti-social behaviours that were alluded to earlier and I intend to make those orders. I was initially troubled about the order under s 68C, that is, the power to arrest without warrant. However, having heard the submissions on behalf of the Independent Children’s Lawyer and read the material prepared by counsel for the mother, it seems to me that that order is, in the circumstances, appropriate and I intend to make that order and the injunction sought.

15. The final matter is the change of the children’s surnames.  I was concerned about the change of surname, particularly in relation to lack of evidence and it was open for me to direct the preparation of a family report in that regard.  I have decided against that course.  These children have been psychologically and emotionally prodded and poked by doctors and experts over some period of time and I am obliged to consider the impact of the proceedings on the children. 

16. The children have been cared for primarily by the mother and there is sufficient evidence, having regard to the submissions by the Independent Children’s Lawyer, although somewhat scant evidence, that the change of surname is in their best interests, bearing in mind the sole role that the mother will play probably into the indefinite future.  Accordingly, I intend to make those orders.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 August 2011.

Associate: 

Date: