Trevina and Watters

[2019] FCCA 2894

FEDERAL CIRCUIT COURT OF AUSTRALIA

TREVINA & WATTERS [2019] FCCA 2894

Catchwords:
FAMILY LAW – Parenting – where mother is living with new partner – where mother seeks to vary order preventing children aged one and three years old having contact with mother’s partner – where partner convicted of rape and other alcohol related offences – where recent conviction for aggravated assault against the mother – where the mother’s partner has resumed drinking – where safety and protection of children are live issues – best interests of the children – application dismissed.  

Legislation:

Family Law Act 1975 (Cth) ss.60CC

Applicant: MR TREVINA

Respondent: MS WATTERS

File Number: DNC 561 of 2018

Judgment of: Judge Young

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Darwin

Delivered on: 10 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Tregear

Solicitors for the Applicant: Bowen Lawyers, Barristers & Solicitors

Counsel for the Respondent: Ms Franz

Solicitors for the Respondent: Darwin Family Law

ORDERS

1. That the mother’s application to discharge order 14 of the orders made on 19 November 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 561 of 2018

MR TREVINA

Applicant

And

MS WATTERS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning two children, X who is about one and Y who is three years old. Both children are living with their father at the moment in Darwin and their mother has, at least until relatively recent times, been living in Town C, Western Australia, where she is employed. The mother re-partnered in about March of 2018 with a Mr A and orders were made by consent on 19 November 2018, following a recovery application that the children would be returned to live with their father in Darwin and the children would spend time with their mother.

3. It appears from the material that the father and the mother have a reasonably cooperative relationship but the father objects very strongly to the children being in the company of Mr A. His initial concerns were apparently based on information he had received from various sources in Town A, including family members of Mr A and perhaps from other sources.  That has led to a number of enquiries being made about Mr A’s background through subpoena to Western Australia police and corrections authorities and also further information being provided by the mother.

4. The parties presently have reached an agreement that the children should spend equal time with the mother who has returned to live in Darwin. She is apparently on maternity leave from her employment in Western Australia and Mr A has accompanied her. She has also relatively recently had a child with Mr A, who is an infant at this stage, a very young infant, and she, perhaps understandably, wants the order that was made by consent on 19 November restraining her from bringing the children into the presence of Mr A removed because she is in a relationship with Mr A. In essence, she has a child with Mr A who lives with her and she wants to continue the week about arrangement which has been reached by consent.

5. The difficulty is Mr A’s criminal record. Mr A was convicted on … 2015 of one count of aggravated sexual penetration without consent (in other words, rape) in Western Australia. The background to that offence apparently went back to 2011 in Town C, where Mr A and his then partner lived. According to the sentencing remarks which have been attached to the affidavit of the mother, Mr A, who would have then been about 27, was drunk, when he came home to, it appears, his grandmother’s house where he and his partner were staying. He found his wife’s cousin, who was then about 17, by my calculation, asleep in their bedroom. The young cousin was very drunk. Mr A then raped her, over her resistance according to the sentencing remarks, and in consequence he was sentenced in the Western Australian District Court to a period of imprisonment of three and a half years, or 42 months, with a non-parole period of 21 months. 

6. He was released at the end of that sentence, which, on my calculation, would have been in about February 2017 or thereabouts. Since February 2017 there is no record of criminal conduct until 27 May 2018 when he was found driving with a blood alcohol in excess .08, driving without authority to drive, either on a suspended licence or on a learner’s permit, it’s a little bit unclear to me, or perhaps on the basis that he has never held a licence.

7. On 4 August, hardly more than two months later, he was found drink-driving again. On this occasion there was an additional count of dangerous driving and, again, driving without authority to drive. That is the record, I am satisfied, of someone who has a problem with alcohol: a serious problem, I would suspect. 

8. The next criminal offence occurred on 9 January 2019 when Mr A was found guilty of an aggravated assault on the mother in this case and also damage to property. Mr A’s affidavit, which was filed on 16 July 2019, makes no mention of this episode, which is somewhat concerning given that Mr A asserts in that affidavit that he has rehabilitated himself and is a gentle person and is no longer the person that he was when he was found guilty of rape. The circumstances, according to the mother’s affidavit, were that they had gone camping.  They became bogged. Apparently, Mr A was drunk. The mother, apparently sick of him or his drunkenness, told him not to bother coming home. He did not accept that advice. He went home, broke a window to get in and went inside and punched the mother while he was drunk.

9. So in a period of seven months, there are three serious offences involving Mr A being drunk or under the influence of alcohol: two drink-driving offences, May and August 2018, and an aggravated assault on the mother in January 2019 when he was also drunk.

10. I received in evidence an email where I was told that as a result of his community corrections order, following the aggravated assault on the mother, Mr A had to complete counselling. The relevant part of the email which is dated 22 May 2019 says:

    Mr A completed his final counselling appointment with Town D Community Alcohol and Drug Service today.

    Looking at the dates, he attended on five occasions.  The letter goes on:

    Mr A engages the service well and currently appears highly motivated to maintain a set of recovery goals designed to support relapse prevention and abstinence plans and increase safety awareness. Mr A’s immediate goals include maintaining a personal desire and commitment to working and playing sports.  He also learnt how to self-regulate or manage his emotions safely through the use of CBT [cognitive behaviour therapy] tools and anger management strategies. Mr A is looking forward to becoming a parent again with his partner, who is currently seven months pregnant.  Mr A is aware of our PCADS [the name of the service] self-referral process for ongoing support on a voluntary basis. His client file will now be closed at Mission Australia.

11. On 4 September 2019 there is another email, apparently to Mr A.  It says as follows:

Hi, Mr A.  It was great to see you presenting as healthy and well today. It is clearly obvious that the concept of recovery is really working for you and your family. You really look so happy and content with life. Keep up the good work, Mr A. I wish you and your family all the best. Please, find below an earlier email to Ms B at Adult Corrections -

which is the one I have already read.

1. The email from the Town D Community Alcohol and Drug Service dated 22 May merits some careful analysis, particularly the sentence that reads as follows:

   Mr A engages the service well and currently appears highly motivated to maintain a set of recovery goals designed to support relapse prevention and abstinence plans.

   I take that as a reference to abstaining from alcohol. Mr A in his affidavit said that after January of 2019 (he does not say what happened in January) he stopped drinking alcohol or he drank very little.  He said that he began drinking again in April 2019 when he began playing football with a local football club.

2. Mr A’s affidavit from July raises more questions than it answers. The questions are why is the episode of January 2019 not mentioned? Why is it not mentioned that that involved a serious offence while drunk?

3. Mr A, once he was released from prison in 2017, went through another program designed to assist offenders who have problems with other drug use and criminal conduct. He attended 10 of the 50 sessions apparently. The letter says that he then asked to withdraw because of literacy problems. The police report of the January 2019 incident where the mother was assaulted by Mr A, in addition to the description of the assault, contains this note from the police:

   The victim said the suspect gets violent when under the influence of alcohol.

4. It was put to me by Ms Tregear that I should be satisfied that the mother is protective because she called the police and I accept that she did call the police. I also accept that she told Mr A not to come home when he was drunk. It is also apparent that he ignored her instruction, broke into the house and assaulted her.  I may well accept that the mother is not a person who would cover up Mr A’s behaviour and there is nothing to suggest that she has an alcohol problem or that in any way she is not a perfectly good mother. However, Mr A has a serious history of alcohol abuse and criminal behaviour, the last example of which occurred in January. 

5. The mother herself said Mr A gets violent when he is under the influence of alcohol. Mr A has told me that he began drinking again in April but it is under control. I am not satisfied that these children are safe in a household where Mr A is present based on that recent record that I have referred to of alcohol abuse and criminal behaviour including an aggravated assault. 

6. Having regard to the matters in the legislative pathway, particularly the obligation in subsection 60CC(2)(b) to protect children - and this is the most important criterion in the Family Law Act 1975, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am not satisfied that an order that would see Mr A being in the household with these two children for a week at a time on an equal shared care arrangement would do that and I am not prepared to vary the order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     10 October 2019