Tolley and Tolley

[2019] FCCA 1836

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOLLEY & TOLLEY [2019] FCCA 1836

Catchwords:
FAMILY LAW – Parenting – where there are two children of the relationship (aged 8 and 10) – where the father is a perpetrator of serious family violence – whether the father should spend time with the children – whether the father is an unacceptable risk to the children – where the mother has sole parental responsibility – appropriate restraining order – best interests of the children.

Legislation:

Family Law Act 1975, ss.60CA, 60DD, 61DA, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Applicant: MS TOLLEY

Respondent: MR TOLLEY

File Number: NCC 3873 of 2018

Judgment of: Judge Betts

Hearing date: 13 June 2019

Date of Last Submission: 13 June 2019

Delivered at: Newcastle

Delivered on: 13 June 2019

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: In person

Counsel for the Respondent:

Solicitors for the Respondent:

ORDERS

1. The proceedings be determined by way of undefended final hearing today.

2. That the Mother have sole parental responsibility for [X] born … 2009 and [Y] born … 2010 (“the Children”).

3. That the children live with the Mother.

4. That the children spend time with the Father as agreed in writing between the parents, at the mother’s sole discretion for the purpose of this order, “writing” includes text messages and emails, NOTING THAT:

   (a)The Mother may impose such conditions as to the Father’s time as she sees fit.

   (b)The Court considers that, on the evidence presently available, the Father’s time with the children should be supervised or should at least occur in a public place.

5. Pursuant to section 68B of the Family Law Act for the personal protection of the children, the Father is restrained from consuming alcohol at any time the Father has the children in his care or within twenty-four (24) hours prior to that time.

6. Pursuant to section 68B of the Family Law Act 1975 for the personal protection of the children, the Father is restrained from entering or approaching within one hundred (100) meters  of:

   (a)The Mother’s residence; and

   (b)Any school attended by the children.

7. Pursuant to section 68B of the Family Law Act for the personal protection of the children, the Father is restrained from physically disciplining the children or allowing any third party to do so.

8. The Mother is to retain the passports of the children.

9. Pursuant to section 65Y of the Family Law Act 1975, the children are permitted to leave the Commonwealth of Australia for the purposes of a holiday with the Mother, notwithstanding that the Father’s consent has not been obtained.

10. A copy of these reasons for judgment be made available.

11. The mother be at liberty to provide a copy of these orders to the children’s school.

12. Pursuant to section 68B of the Family Law Act that the father be restrained from removing the children from the mother or from the care of any other person or institution with whom the mother has placed the children unless he has the mother’s prior written consent.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3873 of 2018

MS TOLLEY

Applicant

And

MR TOLLEY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them easier to read.

Background:

1. This is an application for parenting orders in relation to two (2) young children:

   (a)[X] born … 2009; and

   (b)[Y] born … 2010. 

2. The applicant in the proceedings is Ms Tolley, who is the children’s mother.  The respondent to the proceedings is Mr Tolley, who is the children’s father. 

Undefended hearing:

1. The mother instituted these proceedings on 12 December 2018 and they were first returnable on 12 February 2019.

2. Despite being served with the mother’s material on 6 January 2019 the father did not appear on the first return date.  On that date I made orders that the mother have sole parental responsibility for the children; that they live with her; that the father spend time with the children as agreed in writing at the mother’s sole discretion and noting that she may impose such conditions as to that time that she saw fit. 

3. I also put in place restraining orders in relation to the father’s consumption of alcohol while he had the children, and restraining orders in relation to him approaching the mother’s residence or any school attended by the children.  I also put in place a restraint preventing the father from physically disciplining the children or allowing any third party to do so.

4. I made various other orders, including ordering that the father file and serve response material by 12 April, and that he attend court personally on the next occasion, being today, Thursday, 13 June 2019.  On that basis, the matter was adjourned to today for directions or possible undefended hearing, depending on whether the father filed material and attended court.  In the result, the father has done neither.

5. I have before me as exhibit “M1” a sequence of text messages exchanged between the mother and the father.  Following the orders of 12 February the mother advised the father as to this court date.  She also advised him as to the substance of the court orders.  She also gave some oral evidence today that she has spoken to the father about today’s court date, and that during their first discussion he said he was not coming.  In their more recent occasion he said nothing when she reminded him about the court date.

6. The mother is unsure of where the father lives, and his time with the children is sporadic.  It is very difficult for her to serve him with material, but I am comfortably satisfied that the father is aware of these proceedings and has no intention of participating. 

7. I therefore intend to determine the matter on a final undefended basis today.

Material relied upon:

1. For the purposes of the undefended hearing, I have had regard to the mother’s Initiating Application, her Affidavit and her Notice of Risk all filed on 12 December 2018; to the Affidavit of service of Ms A filed 1 February 2019; to exhibit “M1”; and to some brief oral evidence the mother has provided to the court this morning. 

2. I have also had regard to the orders of 12 February 2019.

The law:

1. These are parenting proceedings in which the best interests of the children are the paramount consideration: s.60CA of the Family Law Act (“the Act”). The mandatory best interests considerations are set out in s.60CC of the Act. Pursuant to s.61DA of the Act, there is a statutory presumption that the making of an order for equal shared parental responsibility will be in the best interests of the children. Notably that presumption does not apply in cases of family violence, of which this case is one.

2. The Full Court observed in Goode & Goode (2006) FLC 93-286 that the making of an order for equal shared parental responsibility triggers the statutory pathway identified in s.65DAA of the Act in that the court is obliged to consider, as the first option, an order that the children spend equal time with both parents. This is largely an academic observation in this case.

3. I do not otherwise intend to recite the law in any detail or at any length.

Relevant findings & best interests determinations:

1. The parents commenced a relationship in 2008, married in 2009 and finally separated in September 2016. 

2. The marriage was characterised by the father’s serious family violence perpetrated against the mother, at times in the presence of the children.  The mother gives a number of instances of the father’s violent behaviour, including pouring alcohol on her one night when he came home drunk and then proceeding to choke her and force her to have sexual intercourse with him against her wishes.

3. The mother’s unchallenged evidence is that the father has abused her in the presence of the children.  He physically assaulted the mother’s sister when she confronted him about his actions, punching her and giving her a split lip.  He has thrown the mother against a wall, held her against a wall, punched the wall behind her putting a hole in it. 

4. The mother’s unchallenged evidence is that during the relationship the father engaged in other violent behaviour, such as changing the password to her joint bank account so she could not log in.  This is classic coercive, controlling family violence.

5. The mother has an older child, [B], and for a period of time [B]’s biological father withheld [B] from the mother because of the violent relationship the mother and father were in. 

6. There was previously an AVO protecting the mother from the father.  At one point in time, there was also an AVO protecting the children from the father.

7. In the leadup to final separation the father was cutting himself with a knife and required medical treatment.  His behaviour at that time appears to have been unhinged and mentally unstable. 

8. The father was also a gambler with family money and was generally unhelpful around the home.

9. After separation, the mother gives a number of examples of what appears to be quite chilling, high-level family violence.  In October 2017 when she awoke one night in bed she saw a man standing right above her window wearing a balaclava, a maroon hoodie and lighting a cigarette lighter.  She did not see his face, but observed that he was tall and had a similar head shape as the father.  She knows that the father has a maroon hoodie.  She yelled out “oi” and he ran away.

10. The following day, the mother found green fluid on the driveway around the driver’s side door of her car.  She did not think much of it, but as she was reversing out of the car and she went to hit the brakes, she realised that she had to push the brake pedal down much further than normal.  She drove very slowly that day, and it appeared to her that the brake lines had been cut.  She showed her vehicle to the police, who inspected it and agreed with her.  They did not charge the father however.  The mother suspects this was the father’s doing as he was upset and wanting to reconcile with her at that time.

11. While the mother was away with the children in Country D at Christmas in 2017, she arrived home to find that her Christmas lights had been cut and the light in the garage was also cut. 

12. When she arrived home one other day in May 2018, she saw that one of the house windows was open and that the wires in the telephone box had been cut.  She is naturally highly suspicious that the father was responsible for this, although police could not prove that it was the father and declined to apply for a further AVO against him at that time.

13. On the evidence that is before it, the court considers that the father is a dangerous man.  He is a perpetrator of family violence at a very high level.  His coercive and controlling behaviour is a concern to the court and poses real risk to these two (2) children across a number of different dimensions.  The children could be exposed directly to his violence, as they have been in the past; they could be the subject of his violence;  or perhaps, if they spend significant time with the father, they will get the idea that it is okay or acceptable for men to beat women, and it may be that they themselves could end up in relationships with such violent characters as partners, which would not be in their interests.

14. The father is a plainly unacceptable risk to these children.  Having looked at the text messages in exhibit “M1”, the father’s coercive behaviour continues.  He hassled the mother consistently, and despite her repeated refusals, into providing him with some sort of character reference so that he did not lose his license.  In the end the mother relented and ended up writing some sort of a letter for him in his support.  Yet when she then asked him to fill out a divorce application, he has obfuscated and delayed.  He is displaying classic controlling behaviour even now.  He is dangerous, in the court’s view, and the mother needs to be aware of this.

15. When the mother pursued child support from the father he played the “victim card”, complaining that he could not pay for the children as he had to support himself.  He has since claimed that he has quit his work and he is essentially blaming the mother’s child support application for having to quit.  He is attempting to promote discussions and mutual agreement about the children while at the same time withholding from the mother the very basics of life in terms of financial support.  He is a man who this court would not trust at all with these children.

16. Turning to the issue of risk and the benefit of the children having meaningful relationships with both parents in section 60CC(2), the children benefit from the mother’s consistent loving care of them. They do not spend much, if any, time with the father. Such time is sporadic, it is at his whim, and in my view his time with these children should be occurring in a public place, if not supervised.

17. I am concerned that the father poses an unacceptable risk to these children by reason of his violence on a number of levels, as I have indicated.  He is a clear and present danger to them, in the court’s view. 

18. The children have a close relationship with the mother, and they have obviously a close relationship with their older sibling, [B], as well.  It is unclear as to the nature of their relationship with the father, but presumably there is still some residual closeness there, although the father is not playing much, if any, of a role in their lives.

19. The father has “stepped back” from the children.  He leaves the mother to support the children and to make all decisions about them.  He does not attend court to even participate in these proceedings; he is recalcitrant in terms of child support.  He owes the mother child support of $8299, which speaks volumes about his dismal attitude to parenting.  He is a selfish, violent man who lacks insight into his children’s basic needs.  He also appears to lack basic empathy and compassion for the mother of his children, who he leaves to have to manage them without any practical financial support from him.

20. The mother has a proven capacity to care for the children, and her attitude is that she continues to foster the relationship between the father and the children.  She needs, in the court’s view, to be extremely careful about that.  This court regularly sees coercive, controlling, violent men who abduct and on occasions hurt children just out of spite.   On the evidence before me, this father could potentially – and I say potentially – be one such man.

21. His violence is palpable.  His behaviour in coercing and attempting to control the mother continues.  He has no remorse; he lacks insight.  He is a poor role model for these children.  It is difficult to see any benefit to these children spending any time with the father until he undertakes some very serious work on improving his parenting and his attitudes, particularly in relation to family violence.

22. If his problems primarily relate to mental health and alcohol abuse, then he needs to seek help for his children’s sake.

Conclusion:

1. In the meantime the court considers that the only appropriate orders to make are those set out at the commencement of these reasons.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 2 July 2019