Thompson & Dean and Anor - [2011] FMCAfam 1074

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMPSON & DEAN and ANOR

[2011] FMCAfam 1074

FAMILY LAW – Aboriginality – significant domestic violence – section 68B injunctions – undefended hearing.

Family Law Act 1975, ss.10E, 10D, 69ZW, 60B, 68C, 13C, 69ZT, 60CA, 60B, 61DA, 65DAA, 60CC

Jones & Dunkel (1959) 101 CLR 298
Goode & Goode (2006) FLC 93 - 286
Marvel & Marvel [2010] FamCAFC 101

Applicant:

MS THOMPSON

First Respondent:

MS DEAN

Second Respondent:

MR MILLER

File Number:

AYC 476 of 2008

Judgment of:

Harman FM

Hearing date:

19 May 2011

Date of Last Submission:

19 May 2011

Delivered at:

Albury

Delivered on:

19 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Wilson

ORDERS

Leave is granted to Mr Wilson to withdraw from these proceedings.
That Ms Dean shall have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2008.
That Ms Dean shall have sole responsibility for making all and any decisions regarding the children’s day to day care, welfare and development.
That the children [X] and [Y] shall live with their mother.
That pursuant to s.68B of the Family Law Act 1975 Mr Miller and
Ms Thompson and Mr Thompson shall be and are hereby restrained as follows:
(a)From approaching, contacting or attempting to contact Ms Dean or either of the children by any means whatsoever including through third parties;
(b)From approaching Ms Dean or either of the children or place of residence or her place of work or within 1km of same.
(c)From approaching within 1km of any school, preschool, day care centre or other service attended by the children [X] and [Y] at any time.
I note that the above restraints are orders to which an automatic power of arrest attaches pursuant to s.68C and upon any police officer on reasonable grounds believing that there has been a breach or attempted breach of those injunctions and in the event that any police officer is so satisfied then the offender is to be arrested without warrant and brought before me at the first available opportunity or if I am unavailable before another Federal Magistrate.
That pursuant to s.13C(1)(c) that Ms Dean shall forthwith and within

7 days contact:
(a)The appropriate person or agency conducting or offering the Brighter Futures Program in [W] (“the agency”) and arrange and attend the first available and offered intake appointment with a Family Advisor or Family Counsellor with the agency and to allow an assessment to be made by the agency of the most appropriate assistance that can be provided to them and including whether services, courses or programs provided by that agency or by referral to any other family relationship service or professional and with respect to same:
(i)Support and assistance following a substantial history of domestic violence by her former partner and father of her two children;
(ii)Assistance with children’s play, pre school and parental support; and
(iii)Develop employment skills and find appropriate employment.
(b)The [J] Play Group [W] to ascertain whether a place can be made available for the children to attend and noting that Ms Dean has made attempts to enrol the children without success and on this occasion the Court requests such assistance and expedition of assistance that that group can provide; and
(c)The [omitted] Employment Agency [W] to assist with such employment skills or referrals that are available and appropriate.
That pursuant to s.13C(1)(c) that Ms Dean shall then attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service, course or program is completed and the above stated purposes achieved to the maximum extent the agency considers possible:
(a)The agency (and any other family relationship service or professional to whom referral is made) is requested to:
(i)Advise the Court in writing when service provision has been completed or withdrawn;
(ii)Advise the Court in writing should the parent fail to contact the agency within 7 days or fail to co-operate, accept referrals or fail to participate in any service, course or program recommended;
(iii)Advise the Court in the event that a notification to the Department of Family and Community Services is made (by the agency or any other family relationship service provider or professional to whom referral is made) as to any of the matters set out in s.10D(4) and, if the agency considers it appropriate, to provide to the Court a copy of such notification (and noting that this shall be a matter entirely for and within the discretion of the agency as information can be obtained by the Court from the Department of Family and Community Services pursuant to s.69ZW of the Family Law Act 1975) and in the event such copy is provided:
1. It shall be admitted into evidence of the Court’s own motion and subject to s.69ZT(2);
2. The proceedings shall be relisted as a matter of urgency and of the Court’s own motion and pursuant to s.60K to determine what further interim or procedural orders should be made to:
a.Enable appropriate evidence about the allegations to be obtained as expeditiously as possible; and,
b.To protect the child or an of the parties to the proceedings;
c.Deal with the issues raised by the allegation;
3. An order pursuant to s.69ZW shall be made of the Court’s own motion addressed to the Department of Family and Community Services and/or Police of the Court’s own motion;
4. Neither the author of such notification (if apparent from any material provided to the Court) nor any service provider referred to by these orders shall be permitted to be required to attend Court, (by subpoena or otherwise) nor called to give evidence nor cross examined.
(b)Any employee of the agency engaging with the parent and any other family relationship service provider or professional to whom referral is made has leave to inspect the Court file and any subpoenaed material produced to the Court and for which leave has been grant to inspect by the parties, their legal representatives and/or the Independent Children’s Lawyer;
(c)Evidence of anything said or any admission made by or in the company of the family advisor or family counsellor or any other family relationship service provider or professional to whom referral is made shall be inadmissible in accordance with s.10E (and subject only to the service providers requirements to disclose information in accordance with this order and in accordance with s.10D(4) (dealing with threats, risks of harm and disclosures and admissions of abuse);
(d)In the event that the agency determines that it would be useful or desirable for the children to be involved in any appointment and/or to also attend for intake and assessment as to any counselling service, course or program that would be appropriate and of assistance to the children then each parent shall do all things, sign all documents and give such consents and authorities necessary to facilitate such attendance and the above provisions shall thereafter apply to the children’s attendance.
Note the undertaking of Ms Dean that she will continue to attend counselling services through [R] and in particular appointments with counsellor Ms J.
Otherwise dismiss outstanding Applications and Responses and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
Leave is granted to the Independent Children’s Lawyer to make an application for contribution towards costs of the Independent Children’s Lawyer as against each party.
I decline to make any order for costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ALBURY

AYC 476 of 2008

MS THOMPSON

Applicant

And

MS DEAN

First Respondent

MR MILLER

Second Respondent

REASONS FOR JUDGMENT

These are proceedings relating to two small children, [X], born [in] 2007 and [Y], born [in] 2008. [X] has recently turned four years of age and [Y] will shortly turn three years of age.
The parties to the proceedings are [X] and [Y]’s parents, Ms Dean and Mr Miller. Also as a party to the proceedings and, indeed, the applicant in the proceedings is the paternal grandmother, Ms Thompson.
These proceedings were listed for a two day hearing to commence yesterday. Due to exigencies of the list it was not possible for the matter to start yesterday and, indeed, it was readily apparent that the matter would not conclude in 2 days. On that basis it was proposed that the matter would commence today and with as much progress as could be made with the evidence and if the matter was not concluded that interim orders might be made in the event that interim applications were forthcoming from any party or from the Independent Children’s Lawyer. That has not, however, occurred.
The matter has proceeded today to evidence and has proceeded with the participation only of Ms Dean, these girls’ mother, and the Independent Children’s Lawyer. At the commencement of the day

Ms Thompson was not present but was represented by extremely competent counsel Mr Wilson who indicated to the Court that his instructions were to not seek to proceed further and to discontinue the application that was before the Court by Ms Thompson as the applicant. Accordingly, leave was granted to Mr Wilson to withdraw, he being bereft of instruction, and the matter has proceeded on an undefended basis as regards Ms Thompson.
Unless it should become an issue at any point in the future I should make clear that the matter has also proceeded on an undefended basis today as regards Mr Miller. The Court has not had the benefit of a Notice of Address for Service on behalf of Mr Miller. Indeed, his address is shown on the Court record as unknown. From consideration of the material that has been filed in the proceedings and to which I shall return it is clear that Mr Miller’s address is now known as he is on remand and detained at the [omitted] Correctional Centre.
I am satisfied, on the evidence that is before me, that Mr Miller is fully aware that the matter is listed before the Court today and was listed yesterday and that he has made no attempt to participate in the proceedings today or previously. There has been no approach to the Court by Mr Miller seeking that he be brought to this Court by order under the Prisons Act and there has been no application to attend by video link or otherwise. Accordingly, I am satisfied that Mr Miller is aware of the proceedings and has been afforded procedural fairness. Further, I am satisfied that Mr Miller through his own actions, consistent with his demeanour, personality and character – as to which I will make findings in due course – that he has sought to absent himself from these proceedings.
That has, no doubt, been in the full knowledge that his actions would be the subject of substantial criticism and, indeed, that it would in all probability be a fruitless exercise as it was never possible, on the evidence available, that Mr Miller could obtain any substantial order in his favour. Indeed, I do propose to make orders that address

Mr Miller’s relationship with these children in the nature of s.68B injunctions to protect them from him. Having been satisfied that both the applicant and Mr Miller, the children’s father, are aware and on full notice of the proceedings and the orders sought and the evidence relied upon, I am satisfied the matter can and should and has properly proceeded before me today.
Prior to withdrawal Mr Wilson had provided an extensive case outline document which outlined the material that was to be read in his client’s case. All of that material was read and considered.

The Legal Aid Commission

At the commencement of the matter yesterday Ms Dean had identified the material that she relied upon. I should hasten to add that Ms Dean has appeared in these proceedings unrepresented although with some pro-bono assistance from a legal officer from the Legal Aid Commission of New South Wales. It became apparent early in the process yesterday that Ms Dean’s legal aid funding had been terminated after she had been away from her home for a substantial period visiting relatives in Sydney and had not responded to correspondence, requests for instructions or attended appointments.
It was indicated that Ms Dean was intending to apply to reinstate her legal aid funding and I had made clear to all yesterday that I took that statement by Ms Dean, being self-represented, as an application for an adjournment of the proceedings and it was on that basis that it was made clear that the matter would today proceed with respect to interim orders only, although the matter would commence on a final basis as clearly it was not going to finish in the allocated time and would go over part heard giving Ms Dean exactly the opportunity she sought to be represented.
I refer to those matters, however, to make clear and to congratulate the Legal Aid Commission and in particular, Ms U, who has provided assistance to Ms Dean not only yesterday and today, but has also assisted her in preparing her material.
Ms Dean is a woman to whom the Commonwealth has special and significant obligations. She is a woman and accordingly the Commonwealth’s obligations under various international treaties provide that she is to be afforded special consideration and assistance.
Ms Dean is an Indigenous Australian and the disadvantage which her people have historically suffered and which she continues to suffer as a consequence of historical and systemic disadvantage can be addressed and should be addressed in a number of domains but in the context of this case can and should be addressed in ensuring that her legal rights are protected and noting that Indigenous Australians are people for whom the Commonwealth also has a special responsibility and, indeed, a special legislative capacity.
Legal Aid determinations are made by State government bodies and I make no criticism at all of the Commission as regards the termination of aid in the circumstances above described. However, I have made the above comments only to be clear as to both the desirability of ensuring having ensured due process to Ms Dean through adjournment of the proceedings (if defended) and so as to allow her funding to be reinstated and to repeat my admiration and gratitude and, no doubt, that of Ms Dean for the substantial and selfless assistance provided by the Commissions legal officer Ms U.
Ms Dean has also been the victim of substantial domestic violence. She has not, on her own evidence, had the most stable of upbringings, but that is no fault of hers and is the fault of others and not only within her own family but institutionally and beyond. As a consequence,

Ms Dean’s education is not as complete as it might have been. That is not to suggest that Ms Dean is in any sense unintelligent, but purely that she has not had the benefit, as every Australian has the right, of a fulsome education to ensure that she can achieve her full potential in life. And as such the assistance that has been provided to her has been an assistance substantially to her but also to this Court, because otherwise her story would not be fully before this Court in any meaningful way and the affidavit that has been filed with the assistance, although not representation, of the Commission puts the Legal Aid Commission exactly where it should be, in a spotlight deserving of praise, support and ensuring that they are able to continue the work that they do.

The Evidence

Returning to the evidence I have read and considered Ms Dean’s material prepared with the Commission’s assistance. The Court has also had two reports prepared in this matter, one by Ms B and one by Ms C.
The report of Ms C, regrettably, was only released some few days before the hearing and did not contain any clear or specific recommendations. That is not a criticism. It is not the role of the report writer to determine the outcome of the proceedings. But the report has a number of deficiencies which largely relate to systematic problems. The children, the subject of these proceedings, [X] and [Y], were not seen with the applicants notwithstanding that their application was to have these children live with them in their full-time care.
Within the report substantial criticisms were raised by the applicants, Mr and Mrs Thompson, of the mother and when Ms Dean was then seen subsequently with the children, it would appear from the flavour of that report, that very little testing, or reality testing, of the allegations and criticisms raised by Mr and Mrs Thompson was undertaken, if any.
As a consequence, recommendations were made in the report, not with respect to the children’s future parenting arrangements, but as follows:
a)Department of Community Services be urgently requested to commission a full comprehensive family report in the matter, and
b)That pending Department of Community Services intervention the current orders be enforced and the children spend regular time with their grandmother.
The difficulty with those recommendations is that the Department is not a party to these proceedings and I have no power to compel them to do anything. Secondly, and more fundamentally, Ms C was commissioned to prepare the family report and why it is then recommended at the conclusion of a 27-page document that a State Government agency be seized with that very responsibility beggar’s belief.
It is also inferred that Department of Community Services would be invited to intervene in these proceedings. Whether that would or would not have been fulfilled is unclear, although, based on the material that is available in the affidavits it would appear unlikely that the Department would intervene as they have had substantial and repeated complaints, it would seem, not only by Ms Thompson, but substantially by her, and Ms Thompson expresses her disappointment, including to Ms C that the Department has, in her words, “done nothing”. One can infer from that that perhaps the Department did not have any concerns that they felt they needed to act upon.
In addition to the reports, Ms Dean has also been cross-examined briefly today and there are a number of documents tendered into evidence; seven in the case of the independent children’s lawyer and two on behalf of Ms Dean.
The documents tendered by Ms Dean make it clear that she has engaged with a counsellor [R] by the name of Ms J and has attended a number of appointments with that counsellor, although there have been a number of missed appointment. This is so notwithstanding criticisms with some validly that she has not, in the past, taken up services available for her assistance. I accept from Ms Dean’s evidence that this has perhaps related, to a large extent, to child-minding difficulties and that this has been the cause of a number of difficulties in attending appointments or accessing services.
Exhibit ICL1 is a useful and comprehensive summary of allegations of domestic violence and criminal behaviour of Mr Miller and which are corroborated by reference to tendered documents ICL2 being COPS event entries from the New South Wales Police. The four page summary of assaults, by the father, Mr Miller, commencing in 2002, and against Ms Dean and members of his family are extensive and disturbing. The assaults include assaults by him upon his parents and each of them, Ms Dean, his brother, the police and strangers.
There are also events in relation to assaults by Mr Miller’s brother,

Mr M, including sexual assaults upon minors. Similarly, these are concerns which one can infer Ms Thompson is aware of as she has referred to them in interviews with the report writer Ms C.

Ms Thompson is reported as remarking that Mr M, then on the run from New South Wales Police and resident in Queensland, has “been in some trouble in Queensland.” That no doubt relates to the two allegations of sexual assault upon minors that are levelled against him and for which he is still sought to be questioned in Queensland.

There were also other matters that have caused Mr Miller to come to the Queensland justice system’s attention in relation to breaching bail, although it is unclear what he was on bail for, and convictions in relation to threats to cause serious harm, possessing dangerous drugs, possessing utensils and using a telecommunications device to make threats. They are very consistent with his New South Wales criminal record wherein he has charges and convictions in relation to assault, menacing driving, damaging property, contravening domestic violence orders, stalking and intimidating and the like.
In relation to the evidence overall, the criticisms that are largely made of Ms Dean are long on allegation and short on evidence.
Whilst these are proceedings to which Division 12A of Part VII applies, and accordingly s.69ZT makes clear that certain aspects of the Evidence Act1995 do not apply to these proceedings, including provisions dealing with hearsay evidence, the evidence that is sought to be led – and using that term in its loosest sense – by Ms Thompson in relation to her concerns and criticisms of Ms Dean would, but for such non-application, be excluded.
Section 69ZT though does not as a blanket allow the introduction of hearsay or opinion evidence nor does it in a blanket fashion allow it in. Sub-s(2) of the section provides that the Court can give such weight as it thinks proper to evidence that is admitted through the non-application of the specified parts of the Evidence Act 1995 and the Court is otherwise left, by sub-s(3) with a discretion to apply the Rules of Evidence as strictly as they consider appropriate in the circumstances.
This is a case in which the hearsay and opinion evidence and conjecture is sought to be relied upon as the basis for removing two young children, four and not yet three, from the care of their Aboriginal mother and to place them into the care of their non-parent Caucasian paternal grandparents. In those circumstances I am perfectly and entirely satisfied that the exception in sub-s(3) applies and that the Rules of Evidence can and should be properly and fully applied.
Indeed, the probative value of the evidence that is led as the basis of criticism of Ms Dean is, in most respects, so lacking that to rely upon it to make any decision of any importance would be a miscarriage of justice and the mis-exercise of discretion by this Court. There are already enough children removed from their parents and in which indigenous Australians are historically and continually over-represented that I would not be prepared to take any step of the nature suggested by the application of Ms Thompson, now discontinued, without probative evidence strictly in compliance with the Evidence Act.
The Rules of Evidence have been developed since Magna Carta and they have developed for good reason. Initially, within the relevant provisions of Magna Carta, rules of evidence were intended to protect citizens from false accusation and false imprisonment. Freeborn John Lilburne continued that development in the 1640s so as to ensure that all litigants are entitled to face their accusers, to know the case that they are to answer and to test evidence that is put before the Court.
Magna Carta, some 800 years ago, made clear that hearsay evidence cannot and should not be relied upon in any process. There are good reasons. The consequences of relying upon it in making a decision which profoundly impacts, in this case not only upon Ms Dean, but two children, are far more severe than the consequences of excluding evidence which is not in proper form. It is not undertaken to exclude evidence of that nature for the sake of it, but for the sake of delivering justice and equity, and in this case I am satisfied that it must be so.
Further, the absence of corroboration of any of the allegations must, in my mind and in this case, give rise to a Jones & Dunkel (1959) 101 CLR 298 inference against accepting that evidence or its truth. It is suggested in relation to a number of reports given by neighbours, allegedly regarding Ms Dean, that they are too afraid to be on affidavit. That may have some validity but there is nothing at all to otherwise specify or particularise the criticism. Similarly, the allegations that are made in relation to reports to the Department of Community Services, as they then were, and the New South Wales Police of attendances at and observations by those officers of the mother, the children and her household, are not before this Court, and accordingly I am not satisfied should be accepted.

Legislative Pathway

In turning to the law, the legislative pathway is clear and as set out in Goode & Goode (2006) FLC 93 - 286 and Marvel & Marvel [2010] FamCAFC 101.
I am required to commence by considering s.60CA and to regard the children’s best interests as paramount at all times and in all that I do.
Then moving forward I am required to consider the objects and principles of the legislation which – whilst not substantive provisions to be applied to the facts of the case – inform the interpretation and application of the substantive provisions which are to be applied. The objects and principles of the legislation commence with the statement that I am to ensure that the children’s best interests are met, by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
I pause at that point to make clear, as will become apparent from the balance of these reasons, that I see no positive benefit in these children maintaining a relationship with their father, which I am not satisfied could begin to be described as meaningful, and that, to the extent that there might be some illusory benefit of such a relationship, that it would not be consistent with their bests interests.
The objects continue and require that I consider:
Protecting children from physical or psychological harm and from being exposed to abuse and neglect or family violence.
That object will certainly inform the making of orders as regards

Mr Miller.
Ensuring the children receive adequate and proper parenting to help them achieve their full potential.
That also will assume some real importance; and
Ensuring that the parents fulfil their duties and meet their responsibilities.
The principles underlying the objects as set out in sub-s(2) and provide that:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to spend time on a regular basis, and communicate on a regular basis with both parents, and other people significant to their care, such as grandparents;
c)Parents jointly share duties and responsibilities;
d)Parents should agree about future parenting, and
e)Children have a right to enjoy their culture, including to enjoy that culture with people who share the culture.
Subsection (3) of s.60B specifically extends that principle to the right of Aboriginal or Torres Strait Island children and reaffirms the children’s right to enjoy their Aboriginal culture and to maintain a connection with that culture, to have support, opportunity and encouragement necessary to fully explore the culture and to develop a positive appreciation of it.
I am then required to turn to s.61DA, which deals with the presumption of equal shared parental responsibility. That presumption only applies as between parents and not others. I am perfectly satisfied that the presumption has no application in this case.
The presumption does not apply when the Court is satisfied that there are reasonable grounds to believe that a parent, or a person who lives with a parent, has engaged in abuse of the child or family violence.
This case contains the most horrendous and detailed allegations of family violence. Exhibit ICL2, which comprises COPS event entries, is littered with Mr Miller’s sadistic, pathetic and entirely unacceptable behaviour towards the range of people I have previously referred to but also towards other sentient beings.
On 22 June 2008, Mr Miller saw fit to beat to death Ms Dean’s dog, and to do so in front of her and in front of one of the children. There are a number of entries dealing with that incident. The importance of that, at the risk of being self-effasive, is made clear in an article that I published earlier this year regarding “Pets in the context of family law” and which reviewed case law dealing with that very issue.
That paper made reference to a study by the Centre for Prevention of Domestic Violence in Colorado Springs, Colorado, which reported the types of cruelty towards animals demonstrated by parents who had a history of being abusive or violent. It went on to indicate that as part of a diagnostic tool for assessing the impact of violence and the likelihood that violence would occur, that the most important screening tools for domestic violence were whether the partner has threatened to harm animals, whether the partner has injured or killed animals, whether they have removed or threatened to remove animals, whether they have had animals destroyed or threatened to.
The Colorado review goes on to indicate:
“Modern literature on domestic violence recognises that such actions and particularly such threats are a method utilised by perpetrators of violence and abuse to gain psychological control over their victims. This approach and the recognition of the propensity for violence or abuse towards people if violence is threatened against animals is longstanding within our legal system.
As long ago as 1705 the jurist philosopher, John Locke, noted in Some Thoughts Concerning Education as follows:
“One thing I’ve frequently observed in children that when they have got possession of any poor creature they are apt to use it ill, they often torment and treat very roughly young birds, butterflies and such other poor animals which fall within their hands, and that with a seeming kind of pleasure. This, I think, should be watched in them, and if they incline to any such cruelty, they should be taught the contrary usage. For the custom of tormenting and killing a beast will, by degrees, harden their minds even towards men, and they who delight in the suffering and destruction of inferior creatures will not be apt to be compassionate or benign to those of their own kind.””
That is also continued on as a similar theme in a recent article by Lynn Law, “I will only help you if you have two legs”, which indicates:
“An animal may serve as a barometer for families needing help because its requirements are more straightforward than the subtleties of bonding between parent and child, which requires a trained eye to assess. Additionally the plight of the animal may be more readily observed by neighbours, both because the animal goes outside unclothed, so the starvation and injuries are visible, and because it may howl or disrupt the quiet of the neighbourhood when harmed or neglected. Moreover, people are more willing to report the maltreatment or neglect of an animal than of a child”. [I pause to add that, sadly, that is probably a very true statement]
“With children people tend to want to avoid interfering in someone else’s family and may wonder what the child did to provoke the parent. Indeed, the role of the animal in troubled families may be to elicit intervention. “
Similarly, Jane Quinlisk, in “Animal Abuse and Family Violence” reported that 68 per cent of victims of domestic violence had reported that there had been violence towards pets or other animals in or about their household. That is perhaps a stark aspect of the evidence that demands attention, as one cannot help to be struck, as in the words of Gandhi:
“One focussing upon a person’s humanity by the fashion in which they treat other sentient creatures.”
To read that this sick and pathetic creature, Mr Miller, is observed by Ms Dean leaning on a tree and stomping on her dog’s head is compelling. When questioned what he was doing Mr Miller simply replied coldly, “I’m going to kill it.” At this time the daughter of the parties was there and was removed by her mother. The daughter, it would appear, observed this. The dog was then dragged to a ute. He took a gun, shot the dog and threw it in a river. That perhaps leaps out, but also so does the balance of allegations.
It is suggested that in January 2007 this man, using that term loosely, suggested:
“I’m going to dig up my shotgun and I will be there, you black slut, and I will get rid of you and the baby. I’m coming down there, I’m going to get that gun and come and put a bullet in you and the baby.”
This is the father of this child.
Mr Miller is similarly reported as assaulting his mother, his father, his brother Mr M, and as I have previously indicated, police and random strangers.
It is quite clear from the COPS entries that Mr Miller speaks to his mother in the same terms, although she not being Aboriginal, is spared being referred to in derogatory fashion by reference to her colour, but he refers to her as a “slut” and a “cunt”.
This is a man who clearly has no ability to demonstrate respect for any person and particularly not women. His difficulties are no doubt exasperated by what is made clear in all of the material being that he is a chronic, long-term user of marijuana That is no doubt something that might be addressed whilst he is in a correctional facility, and one would hope, for his benefit and that of the community upon his release, that it might be.
I have dwelled upon these matters to make clear that violence is at the centre of this case. Violence is also of some relevance as to the issues that have arisen with respect to Ms Thompson, who was the applicant in these proceedings. The allegations of violence by her son relate to Ms Thompson in two ways. Firstly, there had been orders in place for time to occur between these children and their grandmother but on condition that they not have contact with, or be brought into contact with, Mr Miller. It is to be remembered that at the time of those orders Mr Miller was on the run from New South Wales police and in Queensland.
Notwithstanding the order Mr Miller was contacted repeatedly and/or made contact repeatedly with his mother who, presumably, had some knowledge of his whereabouts but didn’t share that information with the relevant authorities, notwithstanding the time that was devoted by her to contacting the Police and the Department of Community Services in relation to Ms Dean.
It is suggested by the Independent Children’s Lawyer that this demonstrates a lack of ability to protect these children, or to shield them from violence. Indeed, that is apparent from Ms C’s report.

Mr Thompson, Mr Miller’s father, is suggested at paragraph 6.17 as saying, “Mr Miller had issues that he had to deal with and straighten his life up as well.” One can infer from the manner in which this is stated that Mr Miller is perceived by his parents to have problems but problems that are nowhere near as grave as those perceived of

Ms Dean.
Mr Thompson goes on to indicate that:
“Both Mr Miller and Ms Dean have found their responsibilities too great, and it ended in domestic violence.”
Ms Thompson is reported as saying:
“…that her son had his problems, but at least when her son was there she knew the children would have food to eat. Ms Thompson said that when her son was not there she worried that the children had food and were clean”.
It is suggested by Ms Dean that following separation she had had to

re-educate herself as to how to do the grocery shopping as Mr Miller and his mother had insisted that they do it all.
What is concerning about such statements as reported by Ms C is the manner in which they minimise Mr Miller’s behaviour. It is as though Ms Thompson expresses the view “He has problems, but he is not as bad as Ms Dean, who is the victim of his problems.” Mr and Mrs Thompson do not have any concerns about the children’s welfare as long as their son is there and presumably not there slaughtering dogs in front of his children.
The second aspect that is concerning is that it is suggested by Mr and Mrs Thompson that Ms Dean has “used” allegations of domestic violence, and one can infer from the manner in which that is reported, that Ms Dean is suggested to have made them up or exaggerated them as a weapon in these proceedings and specifically against their son. It is reported by Ms Thompson, as paragraph 6.38:
“Because of the apprehended-violence order, Mr Thompson said that Mr Miller was not allowed to speak to the children before he went to Queensland, or to speak to them by telephone if he rang while away. Ms Thompson said that they might allege that they had broken the order.”
It would appear, as the evidence has unfolded, that Mr and Mrs Thompson have breached the orders. It had appeared yesterday and before material was introduced by tender that this might have been a valid criticism of Mrs Thompson but perhaps blown out of proportion. From what is now before the Court it is a criticism that is entirely valid and in proportion.
This man Mr Miller is evil. He will be kept away from these children.
It is suggested by Ms Thompson that she has made continuous reports to the Department of Community Services, but as she is reported, at paragraph 6.32, “…it was unfortunate that DoCS did nothing”. She said the matter was costing them a lot of money and Ms Dean was getting away with everything and didn’t have to pay anything (presumably being a reference to her being legally aided).
Other concerns are raised in paragraph 6.27 of the report. In reference to their son Mr Miller, Mr and Mrs Thompson said that Ms Dean had, “put him back in gaol now.” Mr & Mrs Thompson indicated that they did not have much detail of Mr Miller’s difficulties but they understood, in addition to the domestic-violence issues, that “he got into some trouble while he was in Queensland recently”, being trouble, it is now clear, that relates to drug use, violence, threats, and possibly sexual assaults on minors.
It was conceded by Mr Thompson that Mr Miller had “drug issues”. That is the most euphemistic description of a chronic and longstanding marihuana addiction that one can imagine.
The second and more substantial concern in relation to the violence, as I have raised, is that not only is it suggested that Ms Dean is using it as an unfair advantage and a weapon but Mr and Mrs Thompson minimise it. Mr and Mrs Thompson have been assaulted by this brut of a man and yet that is something that is sadly missing from their material.
As I have indicated, as far as I’m concerned, the presumption simply does not apply as between Ms Dean and Mr Miller and it never did in light of the clear violence perpetrated by Mr Miller.
The presumption could never have applied as between Ms Dean and Ms Thompson.
As the presumption does not apply I am not required to consider equal or substantial and significant time as described in s.65DAA although I may if I wish.
I am still required to consider s.65DAA(5) which forms one of the tests by which any order to be made by the court must be considered being a test of reasonable practicality. I will deal with that most conveniently through turning to and dealing with s.60CC considerations.
In turning to s.60CC and considering the matters relevant to the children’s best interests I commence with the primary considerations. The primary considerations are the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm.
Whilst there has been great discussion in the last 18 months, indeed, since 2006, as to the impact of these amendments upon seeking to prioritise a child’s relationship with a parent over risk, those discussions are misguided. This Court has no intention of ever prioritising the possibility of a relationship or its continuation above safety. The amending Bill presently before parliament will make that clear. However, in the interim the decisions made by this Court will always proceed on the basis of the child’s best interests, and if a child is not safe, that gives rise to two significant issues:
a)Firstly, if the child is not safe then it is difficult to understand how any relationship that is then attempted or forced could be described as “meaningful”
b)
Secondly, the Court’s obligation, as informed by the objects and principles, is to seek to provide a benefit to a child in furtherance of their rights under the International Conventions of the Right of the Child to have a relationship with each parent, but provided it is in their best interests. In this case, certainly as regards

Mr Miller, I am not satisfied that this could even be laughingly suggested. The need to protect these children and the only parent that they have available to them is manifest.

The additional considerations stand alone as individual considerations and also inform the primary considerations.

Views

There is no real evidence about these children’s views, and certainly no suggestion that they are uncomfortable or unhappy in their mother’s care. These children are not of an age or maturity whereby I would place any real weight upon such evidence even if available.

The nature of the relationship of the child with each of the persons relevant to these proceedings

I am not satisfied that these children have any relationship with their father, or to the extent that they have a relationship with Mr Miller, that it is anything that could approach meaningful. Any relationship would be dysfunctional, enmeshed and typified by fear.
In relation to Mr and Mrs Thompson, there is certainly a suggestion, although unfortunately no observation by Ms C, to corroborate it, that the children have a good relationship with them. However, it is not a relationship that stands alone.
The consideration of the benefit to a child of having a meaningful relationship with both parents creates two difficulties. Firstly the primary consideration focuses on and is between parents and not others. Accordingly Mr and Mrs Thompson’s relationship is secondary, in my reading of the legislation, to that of the parents. The primary relationship, and indeed, the only healthy relationship with a parent that these children have is with their mother.
Secondly, the requirement of the legislation is to consider the relationship of the children with both of the children’s parents, and accordingly, I am satisfied that anything that would undermine or further deplete Ms Dean’s parenting capacity or relationship with these children must be avoided.
I am satisfied that to continue a relationship at this time with Mr and Mrs Thompson would cause such fear, anxiety and difficulty for

Ms Dean that it would further impact upon her.
Ms Dean’s evidence was clear and frank. I am perfectly satisfied that she was truthful. She had indicated in her evidence, when asked in relation to not following up previous referrals:
“I can breathe now, I don’t feel like I’m being suffocated by Mrs Thompson. They followed me to the motel last night, it was creepy.”
When questions were asked of Ms Dean in relation to a person who was referred to as a partner or former partner, “[name omitted]”,

Ms Dean had indicated in relation to him, “He respects me, even though he knows I’m damaged from my past.”
That demonstrates a degree of insight, in my mind, by Ms Dean to accept and appreciate that the trauma, distress and inhuman behaviour which she has experienced from her former partner, Mr Miller, the father of her children, has damaged her. Quite clearly it has.
Ms Dean’s evidence was given in a most emotive fashion and is not any less compelling for that reason. She has quite clearly experienced the most significant and heinous abuse in the form of violence by these children’s father. That abuse is so extreme that I am satisfied that he cannot play any role other than to undermine Ms Dean’s capacity as a parent and as far as it is within my power to do so that will be precluded.

The willingness and ability of each parent to facilitate a relationship

This section is often referred to, in the present debate, as the “friendly-parent provision”. It is suggested as the reason why parents do not raise allegations of abuse or violence for fear that they would be seen or perceived as being unfriendly to the other parent’s relationship. But that is to disregard the context in which that section operates.
If a parent has perfectly good reason for not wishing to support or facilitate a child’s relationship, and in this case I am satisfied Ms Dean does, she cannot be criticised for refusing to do so. Similarly that applies in relation to Ms Thompson. She has befriended neighbours of Ms Dean, made continuous reports to the police, and her actions could not be seen as other than undermining Ms Dean’s already damaged capacity to care for herself or these children as a consequence of her son’s actions.

The likely effect of any change in the children’s circumstances

I am satisfied these children can and will continue to live with their mother. The change that will be beneficial, and as described by

Ms Dean in her evidence, having unilaterally terminated time between Ms Thompson and the children is that the children’s emotional health and her functioning has improved.

Practical difficulty and expense

This is manifest in relation to Mr Miller but the Court need not be troubled by it because he will be having no relationship with these children. As regards practical difficulty and expense in relation to

Ms Thompson, that is a matter which relates to the impact of ongoing conflict, criticism, scrutinising and surveillance upon the parenting capacity of Ms Dean.

Parental capacity

I am satisfied that Ms Dean’s capacity as a parent is adequate. I do not put it in those terms to be critical of Ms Dean, but to the extent that there are deficiencies, they arise perhaps in two ways. Firstly, as she has conceded, she has been damaged by Mr Miller’s behaviour. That is understandable, explicable, and to be empathised with, not criticised. However, she does need some supports to regain her own self-esteem and functioning and I propose to make orders to compel that to occur.
Secondly, there is an element, perhaps, by which the criticisms that are raised of Ms Dean in relation to timeliness, appointment keeping, and the children’s behaviours as observed by Ms C, being described as wild and somewhat out of control, is perhaps viewed through an Anglo-Saxon, rather than an indigenous lens.

The maturity, sex, lifestyle, and background of these children

This factor is relevant as these children are extremely tiny and vulnerable children, dependent upon their one functioning parent for support, and I do not propose to make any orders that will further interfere with Ms Dean’s parenting capacity nor do other than support it.

Aboriginality

The children are clearly of an aboriginal/Torres Strait Islander background, although with respect to same it was suggested in

Ms Dean’s evidence, when asked whether Ms Thompson loved the children, that she did not necessarily agree with or adopt that proposition. She answered:
“She witnessed me being choked and chucked around in the car. She’s the most evil, manipulative woman in the world. She’s very spiteful. She doesn’t acknowledge the children’s aboriginality. I don’t trust them like I used to. The wall of respect has slowly deteriorated after all the things they’ve done to me. She didn’t want any little black grandchildren.”
That suggests to me, accepting that evidence, that Ms Thompson has no capacity to support, encourage, or play any real active role in these children’s aboriginality or embrace their culture and, indeed, represents some potential danger to that occurring.
Similarly, Mr Miller, reported as he is as referring to this aboriginal mother as a “black cunt” is unlikely to bring any benefit to these children’s cultural appreciation or sense of self.
Clearly, not being indigenous, Ms Thompson is not in a position to enjoy that culture with these children as a person who shares the culture. The exercise of culture under the Act is not an object of itself. It is not an exercise in political correctness. The enjoyment of culture by a parent with a child is an important and fundamental element in that relationship being meaningful, the very act that this court must try and achieve and, under international law, the right of these indigenous children and this indigenous mother.
International Instruments enshrine the rights of indigenous peoples to culture and practice of culture. The statements of principle contained in such instruments are codified domestically by a number of provisions of the Family Law Act 1975 including s.60B(2)(e), s.60B(3), s.60CC(2)(g) and (h) and s.60CC(6) which importantly provide as regards s.60B(3) and s.60CC(6):

Section 60B(3)

For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement

necessary:
(i) to explore the full extent of that culture, consistent

with the child's age and developmental level and the

child
's views; and
(ii) to develop a positive appreciation of that culture

Section 60CC(6)

Right to enjoy Aboriginal or Torres Strait Islander culture
For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with

the child's age and developmental level and the child's

views; and
(ii) to develop a positive appreciation of that culture.

The above statements are consistent with the United Nations Declaration on the Rights of Indigenous Peoples including:
“Article 12
1.Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies.
Article 13
1.Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”
Culture is a living, breathing, organic thing. It is not static. It is not recorded and read and studied. It is part of the individual and the community. The enjoyment of culture is a lived experience. That experience will occur between Ms Dean and her children and will, I am certain, benefit these children and their lives. Such shared, lived culture is also, tangentially if not otherwise, recognised by s.65DAA and it’s definition of “substantial and significant time” as including:
b) the time the child spends with the parent allows the parent to
     be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to     the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special     significance to the parent
The legislation insightfully recognises the importance of culture, cultural practice and cultural participation to both the inherent benefit of the individual and, through a sharing, education and common practice of culture, the strengthening of both parent/child and parent community relationships rendering same more meaningful.
Cultural practice has some significant importance to indigenous Australians (and many other cultural groupings within our population) and the encouragement of same is fundamental to the health of those individuals, those families, those communities and society as a whole.
Culture is also recognised in a myriad of articles including the work of Daniel Pekarsy in his article “The role of culture in moral development” as representing a central tenant to the view of self and development of healthy psychological functioning. The historical denial and suppression of cultural practice and language for indigenous cultures has been long recognised as having, at best, a direct correlation in unjust disadvantage and impoverishment of those of that culture and, at worst, a metaphorical if not real genocidal impact. That cannot be permitted as a threat or possibility for these children.

The attitude to the child and responsibilities of parenthood

I am satisfied that Ms Dean’s deficiencies as a parent, as identified by the report writers, result from the trauma that she has experienced at the hands of Mr Miller. There is a suggestion that there may also be drug use or other poor choices on her part but there is no evidence to support those allegations before this court.
The attitude demonstrated by Ms Thompson and by Mr Miller is anything but appropriate, and far from anything that could be described as acceptable.

Family violence involving the child or a member of the child’s family

As I have indicated this consideration is manifest in this case.
Mr Miller is a danger to society and to anyone who comes near him, it would seem, judged upon his actions, his apprehensions, and the number of convictions. One would think, in light of the COPS event entry regarding the matter for which he is to be tried, commencing

23 May 2011, that he may be retained in custody for some little time.
There is no present family violence order in force.

As to whether it would be preferable to make orders that will least likely lead to future proceedings

I am satisfied that in this case the best I can achieve is, as far as possible, to cocoon and support Ms Dean so that her parenting capacities can be rebuilt and her self-esteem and general enjoyment of life rebuilt, after the breach of trust which has occurred through

Mr Miller’s violent acts against her, her pet, and other people.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 10 October 2011