Thynne and Thynne - [2008] FMCAfam 379

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THYNNE & THYNNE

[2008] FMCAfam 379

FAMILY LAW ─ Children – interim parenting orders – family violence – requirement that husband’s time with the child be supervised.

Family Law Act 1975 (Cth)

Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334

Applicant:

MS THYNNE

Respondent:

MR THYNNE

File number:

MLC 1558 of 2008

Judgment of:

Walters FM

Hearing date:

14 April 2008

Date of last submission:

14 April 2008

Delivered at:

Melbourne

Delivered on:

14 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr D.E. Whitchurch

Solicitors for the Applicant:

Samantha Ward Pty

Counsel for the Respondent:

Mr R.P. Hutchins

Solicitors for the Respondent:

Whyte Just and Moore

ORDERS

IT IS ORDERED THAT:

The Orders made at Geelong Magistrates Court on 30 January 2008 be discharged.
Until further Order, the child M born in 2005 live with the wife.
The husband and the wife forthwith make an application to and sign all documents necessary to enrol at the [B] Contact Centre, Geelong.
Until further Order, the husband spend time with the said child at the [B] Contact Centre ─ such time to be supervised, and take place at such times as directed by the Director of the Centre.
The husband attend Mr M, Psychiatrist, or such other person as nominated by the independent children’s lawyer, for the purpose of preparation of a report regarding the husband’s mental health and parenting capacity.
The former matrimonial home at Property O, in the State of Victoria, be sold forthwith out of Court, and the proceeds of sale be applied as follows:
(a)first, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the said property; and
(c)the balance remaining to be held in trust on behalf of both parties by the applicant’s solicitors pending further order of the Court.
Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the said child be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
Until further Order, both parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the said child from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch list until further order of the Court.
The matter be adjourned:
(a)
for interim hearing before Federal Magistrate Riethmuller on

29 May 2008
at 10.00 a.m. (with an estimated hearing time of 1-2 hours) ; and
(b)
for final hearing before a Federal Magistrate Riethmuller on

30 October 2008
at 10.00 a.m. (with an estimated hearing time of

3 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The husband do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the trial date.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.

AND THE COURT NOTES THAT:

In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1558 of 2008

MS THYNNE

Applicant

And

MR THYNNE

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Having regard to the extensive exchanges between bench and bar during the course of argument, and bearing in mind that this matter has been heard in the midst of an extremely busy duty list, I do not propose to give detailed reasons in relation to it. I shall appoint an independent children's lawyer and bring the proceedings back before me in approximately two months, so that the ICL will have an opportunity to familiarise himself or herself with the circumstances of the case. To that extent, the orders which I propose to make are no more than preliminary, interim orders.
Mr Whitchurch’s client could have and properly should have filed a notice of risk of abuse (being the type of notice referred to in section 60K of the Family Law Act), which notice would have triggered certain consequences. It is enough to say, at this stage, that the matters raised by the wife are extremely serious, and that they directly relate to the husband's parenting capacity.
One of the primary considerations in section 60CC (which deals with the way in which the court must approach a determination of what might be in a child's best interests) is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is clear beyond argument that the incidents described by the wife in her affidavit fall within the definition of family violence. It is also clear beyond argument that M has been exposed to that form of behaviour. I should add that I have said "clear beyond argument" on an interim basis ─ because I have yet to hear the entirety of the case. Still, I note that no serious submission was made to the contrary.
I recognise, of course, that the parties agreed to the current arrangements for M's care as recently as the end of January 2008. At that time, the wife was well aware of the husband's history and certain of his behaviours, and, I might say, vice versa. The husband had his own concerns regarding the wife's behaviour. But the fact of the matter is that circumstances have changed radically since that time.
Mr Whitchurch points to the fact that the wife believed that she had the benefit of an intervention order and undertakings from the husband. She thought that the order and undertakings would protect her, and M, from outbursts or threats from the husband such as those that appear to have been made. On the evidence before me at this stage, however, it seems clear that that protection was inadequate.
I do accept that the wife does not appear to have complained about the physical care arrangements for M while she has been with the husband; nor does the wife complain about other aspects of M’s care, beyond the events that are described in her most recent affidavit and which have occurred at changeovers. But so serious are those events that, in my view, unsupervised contact should be terminated immediately. M must be protected from what appears to be a very serious attitudinal problem on the part of the husband.
It may well be that the husband has now commenced dealing with that problem in a constructive manner, and that the events described in the affidavit will not again occur. I suppose that it may also turn out to be the case (when all the evidence is before me at trial) that I find that wife has exaggerated those events in some way. But the law places an onus on the court to protect M, and to make orders that are in her best interests – and to do so without fear and without favour.
In the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334, the Court spoke of family violence and its impact upon carers of children – and how, where threats are made or violence occurs, such behaviour amounts to a very serious failure of parenting on the part of the perpetrator. On the basis of the evidence before me, the husband has failed significantly as an carer for this child.[1]
[1] In Re L, Butler-Sloss P said:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages quoted above.
Clearly, I cannot make final findings in relation to the events. It is too early for me to do that. But provisions such as section 60K emphasise the overriding need for a court to act protectively where threats of violence have been made – and, on the evidence currently before me, very serious threats of violence have been made in this case. Put another way, there is an unacceptable risk that contact (to use the old term) which is not strictly supervised will expose M to psychological, emotional or even physical harm.
I am particularly concerned about the husband’s ability to control his anger, and his behaviour generally. I am concerned that he may seek to take his frustrations out on others.
I will discharge the previous orders. I propose to put in place an arrangement whereby the husband will have supervised contact only between now and when the matter comes back before the court.
I will now stand the matter down to enable orders to be prepared to give effect to the decision that I have reached. The orders made on 30 January 2008, as they relate to parenting issues, will be discharged. Until further order, M is to live with the wife. There is no need to make an order for sole parental responsibility at this stage, and I will not do so.
There will be orders for supervised contact at the contact centre. There will also be an order to the effect that the husband be psychiatrically assessed.[2]
[2] Immediately after this matter had been dealt with, the husband stood in the body of the court (in the public gallery, near where he had been sitting behind his counsel) and stared at the presiding Federal Magistrate. He made no attempt to move. The following exchange then occurred (see Transcript):
HIS HONOUR:   Mr Hutchins, I'm calling security. I'm concerned about your client's attitude at the moment and his demeanour.
…
HIS HONOUR:   It is simply not an appropriate course of action to endeavour to stare a judicial officer down. I don't understand the purpose of such action.
MR THYNNE (to the Court):   Who are you? God?
HIS HONOUR:   Mr Hutchins - - -
MR THYNNE (to the Court):   Fuck yourself, you arsehole.
HIS HONOUR:   - - - some matters become self-fulfilling prophecies.
The husband then left the court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Suzette De La Motte

Date: 21 April 2008